Democrats’ decision to filibuster Gorsuch has legs beyond Garland.

Merrick Garland Isn’t the Only Reason the Democrats Should Filibuster Gorsuch

Merrick Garland Isn’t the Only Reason the Democrats Should Filibuster Gorsuch

The law, lawyers, and the court.
April 3 2017 6:01 PM

Merrick Garland Isn’t the Only Reason the Democrats Should Filibuster Gorsuch

The judge’s treatment of female, minority senators should also give lawmakers pause.

Women of color in the US Senate
Sens. Catherine Cortez Masto, Kamala Harris, and Tammy Duckworth.

Photo illustration by Natalie Matthews-Ramo. Photos by Mark Wilson/Getty Images, Chip Somodevilla/Getty Images and Zach Gibson/Getty Images.

At first, the story seemed grossly hyperbolic: Two Democratic women of color in the Senate were claiming that Judge Neil Gorsuch had rebuffed their efforts to meet with him, the Huffington Post reported late last week. Sen. Tammy Duckworth of Illinois and Sen. Catherine Cortez Masto of Nevada—Democrats who will vote on Gorsuch’s appointment to the Supreme Court this week—stated that Judge Gorsuch’s handlers had declined to honor meetings they had been attempting to schedule since February, despite multiple efforts. Really?

Yes, really. Senate staffers have now confirmed that both women were recently told the judge would not be made available for meetings with them.

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Judge Gorsuch’s path to the Supreme Court was always controversial, but as the whip count in the Senate makes manifest, it is also uncertain. It’s a full-on game of chicken now. The Democrats have the votes to filibuster as their counter to the Republicans’ abhorrent behavior around Merrick Garland. But as these revelations make clear, this is not the only way in which the Republicans have misbehaved. As Republican leaders in the Senate trip over themselves to rush a vote on the judge, they are writing off a large number of individual senators. Through their clumsiness—we will give them the benefit of the doubt that it is clumsiness—they are generating an impression of callous disregard for women of color in the United States Senate. To what possible end?

In Duckworth’s case, a meeting scheduled for last Wednesday was abruptly canceled and (she was told) could not be rescheduled before the vote. As Duckworth’s spokesperson Ben Garmisa told us, “Canceling a meeting while declining to offer any alternative times is an odd way for Judge Gorsuch to show his desire to meet with the senator.” Cortez Masto’s spokesperson Reynaldo Benitez has told Politico that several weeks of persistent efforts to get a meeting with the judge were flatly turned down when she sought to lock in a date last Thursday. “They literally said, give me a good reason why the judge should go sit down with the senator,” Benitez said.

Former New Hampshire Sen. Kelly Ayotte—who has been managing the Gorsuch nomination for the White House—disputes this version of events: “No one has been rebuffed,” she told reporters on Friday. “I don’t think that that characterization is accurate.” (Fun fact: News Corp, the media company Rupert Murdoch spun off from 20th Century Fox, has just announced that it is hiring Ayotte onto its Board of Directors to replace Elaine Chao, wife of Senate Majority Leader Mitch McConnell, who left the board when she received an appointment as secretary of transportation in the current administration.) And Ron Bonjean, a Gorsuch spokesperson, told Politico: “Judge Gorsuch has met with nearly 80 senators. In early February, the White House nominations team reached out to Sen. Cortez Masto requesting that a meeting be scheduled. The judge was more than willing to meet with the senator, and both sides have been trying to find a mutually agreeable date that would work.” That is, by the way, the same exact language offered by Liz Johnson, a different spokesperson for Gorsuch, who explained the judge’s failure to meet with Duckworth to the Chicago Sun-Times by saying: “Judge Gorsuch has met with nearly 80 Senators. The judge was more than willing to meet with the senator and both sides have been trying to find a mutually agreeable date that would work.”

Claiming on the Friday before the vote that the judge is just too busy for meetings—while simultaneously asserting that there were plenty of efforts to find a mutually agreeable time—is too little too late. In the meantime, Cortez Masto and Duckworth have both said they will vote no on Gorsuch.

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Strangely, another of the 20-odd senators not receiving the courtesy of a visit from Judge Gorsuch is Sen. Kamala Harris of California. Harris is a legal superstar, formerly the high-profile attorney general of the largest state in the union who was also widely regarded as a potential Supreme Court nominee when the seat in contention was still President Obama’s to fill. Lily Adams, a spokesperson for Harris, confirmed to us that Judge Gorsuch and his team never even bothered to contact their office to discuss setting up a meeting. (Sen. Harris, too, has announced that she will vote no.)

Harris, of course, is also a woman of color. Weird. It’s as if the White House were deliberately writing off minority female senators. Or they are simply past caring. Either way, the optics are terrible.

In the 228-year history of the United States Senate, there have been just five senators who were women of color. The first was Carol Moseley Braun of Illinois, who was elected in 1992 and served one term. The other four all serve now: Mazie Hirono of Hawaii was elected in 2012, while Cortez Masto, Duckworth, and Harris were all elected in 2016. Each is a path-breaker: Hirono is the first Asian American woman in the Senate; Masto is the first Latina; Duckworth is the first woman to serve as a disabled veteran; Duckworth and Harris are the first female senators to identify as biracial. It’s perfectly possible that Judge Gorsuch “has met with nearly 80 Senators.” But it is quite remarkable that all the women of color who are not on the Judiciary Committee (Hirono is) have been snubbed. That means he hasn’t spoken to three-quarters of the women of color currently serving in the United States Senate and three-fifths of all the women of color who have served in that body since the beginning of the republic.

Judge Gorsuch’s White House sherpas have had almost two months to schedule these meetings. Christopher Kang, a former White House staffer who oversaw the confirmations of Justices Sonia Sotomayor and Elena Kagan, said all 100 senators were offered meetings during their advice-and-consent journeys. This is an act of courtesy toward the Senate as an institution. Apparently, Gorsuch’s handlers think some senators deserve more courtesy than others: Sens. Jon Tester and Joe Manchin, both (white, male) Democrats, received two meetings each. (Current tallies have Tester voting no, while Manchin says he’ll vote yes.)

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What’s the rush on confirming Gorsuch, anyway? When Senate Republicans stole this nomination—refusing even to grant a hearing to Judge Garland and leaving the seat vacant for the last 11 months of Obama’s presidency—they made it impossible for the position to be filled in time for the new justice to hear cases in the current term. The last arguments of the year will be heard late this month, and even if the court wished to schedule cases for reargument once the empty seat is filled—an option that they exercise only rarely—those cases would be held over to the next term. The GOP has all the time in the world to conduct this process responsibly. The vote can occur any time before next fall. It certainly need not happen in the next five days.

The unifying theme here seems to be that the White House would rather do things quickly than correctly. The White House is creating a false sense of urgency around the Gorsuch nomination, just as it did around the travel ban and the effort to repeal and replace the Affordable Care Act. This is strange, because it hasn’t seemed to work so far: The travel ban—even the new, supposedly better one—has been put on ice by the courts. Health care reform has been quashed by House Republicans.

But the administration is still following the same modus operandi and trying to steamroll Senate Democrats with this high-speed, corner-cutting Supreme Court appointment. This pretext of urgency is the latest consequence of the failing Trump presidency. As the current occupants of the West Wing careen from one self-inflicted and self-incriminating scandal to the next, Republican leaders in Congress appear to be salvaging whatever parts of their agenda they think they can cram through before governance (or what has passed for governance these past 10 weeks) becomes impossible. It doesn’t matter if it’s done well, as long as it’s done.

This is a party acting like it is running out of time. Gorsuch must receive a vote this week, and it’s too late for meetings or questions. In the Alice in Wonderland of our current political crisis, Judge Gorsuch is the White Rabbit, brushing off Senate Democrats while he tries desperately to rush by. I’m late! I’m late! For a very important date! No time to say hello, good-bye! I’m late! I’m late! I’m late!

It is, of course, particularly disturbing that in this case, the clumsiness of this invented urgency has created a situation in which Judge Gorsuch, in his failure to meet with more than 20 U.S. senators, has snubbed most of the women of color. That the perception of such a slight is not reason enough for Republicans to pause and fix the problem is indicative of how dire things are, in their view, or else how little they care about such optics. Either explanation is alarming.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Tobias Barrington Wolff is a professor of law at the University of Pennsylvania Law School. He is an expert in civil procedure and complex litigation and served as an adviser to the Obama administration on LGBT law and policy.