How to make the SCOTUS filibuster about Trump, not Gorsuch

For all the demonstrations and skirmishing about the Muslim Ban and cabinet nominations, the past three weeks have been the “phony war” phase of the struggle with Trump and the Republicans, the phase of World War II that preceded the Blitzkrieg. The first real battle, the one that will set the pattern for everything that follows, will be about the Gorsuch nomination. To understand how we should approach this battle, it is incumbent on us to take a clear-eyed look at the context in which it will be fought.

As we conclude the third week of the war between the good folk and Donald Trump, the cup is at once half full and half empty. On the one hand, energy courses through the “resistance” and there is much to make us feel that our push-back is already circumscribing Republican initiatives. Trump himself is the target of unprecedented derision and disrespect, both domestically and internationally. His incompetence, the shortcomings of his “temperament,” and a solid stream of leaks emanating from his White House fuel the perception that he is perennially on the verge of implosion.

On the other hand, in the months to come we are poised to be overwhelmed and demoralized by Republican initiatives. Significantly, and arguably at least in part because of the strength of the initial resistance, Trump/the Republicans are choosing their battles with relative shrewdness. We have spent the last ten days arguing about “terrorism,” an issue that Trump is continuing to frame in binary hard/soft terms. While his actions represent a profound violation of our values, his framing will pay dividends for him when the next attack inevitably occurs. Trump himself is at pains to provoke but, in a pattern that I think will hold in the months to come, he is managing to appear “tough” and action-oriented without seeming to adversely impact significant numbers of individual Americans. We and the larger world are getting outraged on behalf of refugees, visa holders, the Mexican President, and the Australian prime minister. There is much to suggest that future headlines will be dominated by Trumpian posturing with our foreign enemies and/or our allies. Yet, it seems clear that Trump is holding back on the Dreamers and he has apparently decided against an EO that would have targeted the LBGT community. Obamacare repeal is out of the headlines, and is likely to remain so given his comments to Bill O’Reilly.

The whole conflict is beginning to look like a game of tennis where Trump is always serving and we are relegated to powering back returns.

Wetake satisfaction in the fact that that Trump popularity is starting at historically low levels. However, this may tell us nothing more than that the majority recognizes he is a thoroughly unpleasant human being. In spite of low favorability and approval ratings, polls also show substantial majorities viewing Trump as “strong” and, remarkably, “intelligent.” A majority holds vague confidence that the country will benefit from his leadership. This perception of Trump as a “man of action” is taking hold. The “man of action” reality show, combined with high profile victories for Republican priorities such as the Supreme Court, will power the narrative that, however flawed, Trump is a tough guy who’s getting things done. Off stage, unpopular Republican initiatives will be jammed through on fiscal policy, health care, and de-regulation that will have profound consequences for economic opportunity, the environment, and who holds power in our society. The impact of these developments will be long-term but will have little immediate impact on the average American. Although Trump has limited ownership of this traditional Republican agenda, its consequences for ordinary Americans will be easily spun and folded into his grander narrative. Moreover, although the initiatives may never be embraced by the majority on their own terms, their enactment will create an aura of boldness and invincibility.

We need to sink Trump’s approval ratings to such an extent that Republicans will perceive him as an albatross.

In general, our lead messaging needs to operate independently of Trump’s provocations. We need to be focused on undermining his legitimacy and his branding of himself as a “winner,” a butt-kicking man of action, a patriot. There needs to be a systematic withholding of the deference that is traditionally accorded a President. Not just SNL but Democratic politicians need to be relentlessly pushing his buttons, questioning his sanity, and challenging his masculinity.

Itis in this context and with these imperatives that we need to address the Gorsuch nomination. Trump’s choice of the deeply conservative but qualified Gorsuch for the Supreme Court sets up a confrontation that promises to shore up his support with Republicans and demoralize the Democrats. Now that Gorsuch has distanced himself from Trump’s comments about the District Judge and the 9th Circuit in the Muslim Ban case, he has shaken off whatever Trump taint he had with the persuadable middle of the electorate. Certainly with reporters. Gorsuch’s favorable initial poll numbers can be expected not just to firm up but to improve. We have our “stolen” seat argument but this paid very limited dividends for us in the election and is even less likely to resonate now. The confirmation hearings will touch all the familiar flash points about the Court, but the well-spoken Gorsuch will almostly certainly finesse them. Ultimately, no one thinks that for the next four years the Democrats can use the filibuster to prevent the seating of a ninth Justice. Trump could have offered a far more in-your-face nominee than Gorsuch. The best we can hope for is the Pyrrhic victory of barely holding together a filibuster and forcing the Republicans to exercise the “nuclear option.” A failure to even mount a filibuster, which recent developments suggest is more likely than not, will be deeply demoralizing.

I would submit that in our messaging in general, we should give pride of place to two simple asks: (1) complete release of all versions of filed Trump tax returns for the last twenty years, including audit reports; and (2) appointment of an independent commission consisting exclusively of former national security officials such as Williams Gates and Madeleine Albright to investigate Russian interference in our elections and the relationship between Russia, Trump, and Trump’s campaign. These issues go to the real heart of Trump’s corruption and unsuitability for office and they garner widespread support. Three-quarters of the public wants release of the tax returns and two-thirds wants Congress to investigate Russian interference further.

The fact that these proposals address issues that are being allowed to fade into the rear view mirror as we endlessly react to Trump’s latest provocations is a critical failure of Democratic messaging. Their potential power to undermine Trump cannot be understated. For two years, and with the complicity of the press, we never stopped hearing about Hillary’s e-mail server, the Clinton Foundation, and Benghazi. Trump branded her as “crooked Hillary” and encouraged his supporters to chant: “Lock her up.” Our incoming attorney general, Jeff Sessions, and our incoming CIA director, Mike Pompeo, were, if anything, even more acerbic on these subjects. Now our own intelligence agencies are telling us that Russia intervened in our election to get Trump elected and there is sound evidence that the “chatter” among Russian intelligence sources was that Trump was compromised. There are reports that the apparent source of much of this information was not only arrested but summarily executed. The usually erratic Trump has spent the last year slavishly behaving like someone beholden to Russia and, most recently, in a Super Bowl interview with Bill O’Reilly, shrugged off an accusation that Putin is a “killer” by commenting that “there are a lot of killers. You think our country’s so innocent?” The allegations against Trump are by far the most serious allegations that have ever been made about an American president. With an obvious eye to the reaction that his interference has provoked, Putin is lying low, postponing asking for sanctions relief, and waiting for the issue to slowly fade.

The allegations against Trump are by far the most serious allegations that have ever been made about an American president.

If there was similar evidence against a President Hillary Clinton there would be no other topic of discussion. Insinuation would run riot. The absence of “verification” of the most sensational accusations against her wouldn’t restrain the Republicans one iota. The burden would be on her and her Democratic defenders (if there were any) to explain themselves.

Iwould propose that the Democratic caucus meet and, prior to any hearings on the Gorsuch nomination, agree that there will be a filibuster of the nomination unless and until laws are enacted requiring the Treasury Department to release the Trump tax returns and establishing the Russia commission. No Senator will be asked to commit to voting for cloture (cutting off a filibuster) if these conditions are met, but the implication would be that there would be no organized pressure from leadership that they filibuster. Some vulnerable red state senators will initially balk at providing an immediate commitment but the caucus should seek commitment from forty-one members, or close to it, from the start and pressure from the base will force most of the rest to follow suit in short order.

At a point when the assumption still is that a filibuster could derail the nomination, the gesture would be processed by the public as Gorsuch in exchange for enactment of these solidly popular and common sense requests to get to the bottom of the most serious accusations that have been made against Trump. The Republicans will scorn the proposal as an outrageous political stunt but, if the Democrats hold rank, it will resonate with the American people. Gorsuch is going to be the next Supreme Court justice no matter what. However, this tactic will turn what would otherwise be a demoralizing defeat into a net gain in the broader struggle. This will happen regardless of how it plays out. Enactment of the proposals by Congress is unlikely but hardly impossible. It will only require a minority of defecting Republicans in the House and Senate. Trump can, of course, veto the proposals. But if it ever got to that point, it would be an epic political catastrophe for him. He would be killing the Gorsuch nomination to avoid a release of his tax returns and an investigation of something where he claims complete innocence.

More likely, the Republicans will not let such a scenario play out and they will hang tough and eventually exercise the nuclear option. But they will do so in relation to different issues than the relatively favorable terrain of Gorsuch’s qualifications. At a minimum, issues that are losing their power — the personal corruption associated with the tax return issue and the potential treason associated with the Russian connection — will be very much back at the forefront of the conversation with much greater potential to influence the discussion going forward. As we move on to battles about taxation, spending, and possible entitlement reform, an America that might settle into a wary confidence in Trump’s leadership in the wake of a more conventional Gorsuch confirmation could be more unsettled about Trump and his Republican enablers that ever before.



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