Why Nuclear Gorsuch is good for Democrats

Liberals faced an uphill battle in the 1950’s. The seven deadly words of the day were, “We’ve never done it that way before!” Society was locked into puritan values, likely still succoring sweet stability after WWII. And, “puritanism” was the fear that somebody, somewhere was having fun.

The world was PTSD’d.

And so, you name the progressive idea…equal pay, equal seats on the bus, equal opportunity to grow your hair as long as you wanted—they all faced an uphill climb.

Democrats, as they morphed from the party of segregation into the party of the downtrodden, found it difficult to legislate their new morally superior, but different, virtues. And then along came Roe.

Roe was unquestionably “legislating from the bench,” and it can be easily argued constitutionally as a bad move.

Good for the people, bad for the framers.

Sure it should have been legislated, and sure it should have been executed at the state level, but all that funning around would have taken as much time as understanding the inside fly rule. In this case, most people feel that the immediacy of action justified the means.

In the past 40 years, progressives have only owned the Congress and the White House at the same time for 2 years. And so, it’s understandable when they look more and more to the courts to do what the legislative can’t. And when that doesn’t work, they look to the executive.

The ability to write law is being distributed wherever progressives can make things happen. I guess that’s also sort of understandable…maybe even admirable. If you can’t do it one way, find a different way.

But…that’s not really all that great in the long run, is it? (Does the word dilution mean anything to anyone?) In a few rare cases (like Roe) an idea can be made more permanent, but in most cases, non-legislated law can be reversed in an instant. That’s because it’s not really law, and that means it’s not really a good thing for truly progressive ideas. They're like little legal mayflies that live a short life and then get snuffed out.

Oh sure… I can wear my hair long for a season… but then along comes the 80’s and I’m just as clean-cut as everyone else. You can’t fight Magnum P.I., no more than you can fight reversal.

When the Senate decided to go nuclear (pronounced as it is written, and not nuke-you-lur) it actually established a “new-clear” path for Democrats…if they can allow themselves to see it, that is. The constitutionally granted ability to craft law is a very, very powerful thing. The President and the Court should not have it… not at all, not even a smidge. They balance it, rather, by veto and decision. It is for the deliberate body of Congress, with their elected, bicameral mix of angry mob and civil debaters, that should jealously hold that creative power without sway.

The Senate’s new-clear actions of late have neatly pulled all that power back into the congress like metal filings to a magnet.

And the Democrats should be celebrating!

When the nuclear (new-clear) option was taken, Senate Minority Leader Chuck Schumer said there will be, “less faith in the Supreme Court” going forward.

Good.

Oh sure, he likely said it as a barb, a shot across the bow—that if the court is going to be more conservative, let’s paint them as weak as we can in our rhetoric. However, the truth be told, the exact same words could have a double-meaning…”Let’s have less faith in the court to make our new law for us going forward, and let’s take that authority back into our own hands where it rightfully, constitutionally belongs.”

It could be a dirty little secret that this was the plan all along. They could force the nuclear option by controlling the 60/40 boundary, and still get an originalist they found in Gorsuch at the same time. He won’t, by principle, legislate from the bench, and they can re-centralize their power to create law. That’s a win-win given their current minority position. You posture for the home crowd, and ultimately get what you want anyway. They probably had a few Dems ready to swing “yay” just in case there were any strays on the GOP side—just to keep it at 51%. Anything between 51 and 60 is a win.

This, of course, means they will be looking at the last few years of elections through a different lens, attempting to figure out how to reconnect with the middle class in order to earn more seats. If they are successful, the progressives can take their passion (that fire in their bellies) and focus it like a laser on new change—the kind that lasts longer than a season, the kind that you only get by legislating new law. But that's a story for a different post. Until then, they would do well to grab their new-clear power and legislate their collective hinies off through good old-fashioned deal making and teamwork.

Ironically, the “partisan nuclear option” of today may yield a “bi-partisan new-clear option” of tomorrow.

;-)