On Saturday, the nation's capital was inundated with masses of loud, obnoxious, foul-mouthed Trump-hating women (and some men) at what was billed the "Women's March on Washington." The Guardian called the event a "spontaneous" action for women's rights, while Vox spoke of a "huge, spontaneous groundswell" behind the march.
The confirmation battle over Supreme Court nominee Neil Gorsuch is off and running, and opponents already know he's superbly qualified with a fine judicial temperament. But Democrats are still itching for a fight, and their first line of offense is the myth of the "stolen" seat.
"This is a seat that was stolen from the former President, Obama, that's never been done in U.S. history before," declared Oregon Senator Jeff Merkley in announcing that he will attempt to filibuster Judge Gorsuch. "To let this become normal just invites a complete partisan polarization of the Court from here to eternity." The "stolen" line is echoing across Progressive Nation, but it's a complete political invention.
The "theft" is supposedly the GOP Senate's refusal last year to vote on President Obama's nomination of Merrick Garland to fill Antonin Scalia's seat. But the standard of not confirming a Supreme Court nominee in the final year of a Presidency was set by . . . Democrats. And by no less a Beltway monument than the current Senate Minority Leader, Chuck Schumer.
"We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances," Mr. Schumer declared in a July 2007 speech to the American Constitution Society. Democrats then held the Senate and Mr. Schumer was putting down a marker if someone on the High Court retired. George W. Bush didn't get another opening, but Mr. Schumer surely meant what he said.
The Democratic theft standard goes back further to Joe Biden's days as chairman of the Senate Judiciary Committee. In June 1992 in President George H.W. Bush's final year, Robber Joe opined that the President "should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed."
Naming a new Justice, he said, would ensure that a confirmation "process that is already in doubt in the minds of many will become distrusted by all." If Mr. Bush made an election-year nomination, Mr. Biden said his committee should consider "not scheduling confirmation hearings on the nomination until after the political campaign season is over."
Does anyone outside the MSNBC audience think that had the roles been reversed in 2016, and a Democratic Senate faced a Republican Court nominee, Harry Reid would have held a confirmation vote? As John McEnroe liked to shout, "You can't be serious!"
The "stolen" myth is being used to justify a filibuster that could block Judge Gorsuch's confirmation with as few as 41 votes. Mr. Schumer said Tuesday that "the Senate must insist upon 60 votes for any Supreme Court nominee, a bar that was met by each of President Obama's nominees."
There he goes again. Republicans never invoked the trigger for a filibuster known as "cloture" against either Sonia Sotomayor, who was confirmed 68-31 in 2009, or Elena Kagan, who was confirmed 63-37 in 2010. Republicans also helped to whoop through Bill Clinton nominees Ruth Bader Ginsburg 96-3 and Stephen Breyer 87-9.
The only recent attempt at filibustering a Supreme Court nominee was by Democrats against George W. Bush nominee Samuel Alito in 2006. Twenty-five Democrats filed for cloture, led by then Senator Obama, Hillary Clinton and Mr. Schumer. They lost that vote, but sometimes we fear that Senator Schumer's memory may be fading since he can't seem to recall his previous actions.
As for filibustering Judge Gorsuch, several Democrats up for re-election are saying they don't want to do it. And Republicans shouldn't invite a filibuster, notwithstanding President Trump's comments Wednesday that Majority Leader Mitch McConnell should change Senate rules to break a filibuster if he has to. If we're certain about anything in politics it is that Mr. McConnell doesn't need Donald Trump's advice about running the Senate. The Majority Leader has more guile than Mr. Trump has bluster, and he knows it's better politics to confirm the judge without breaking Senate rules.
But if forced to do so, Mr. McConnell can also invoke a Democratic precedent. Mr. Reid broke the filibuster to pack Mr. Obama's nominees on the D.C. Circuit Court of Appeals, and last year he said Democrats would do the same for the Supreme Court if Mrs. Clinton won the election and his party held the Senate. "I have set the Senate so when I leave, we're going to be able to get judges done with a majority," he said. "They mess with the Supreme Court, it'll be changed just like that in my opinion."
Losing vice presidential candidate Tim Kaine promised the same last October. "If these guys think they're going to stonewall the filling of that vacancy or other vacancies," Mr. Kaine said, a Democratic majority "will change the Senate rules to uphold the law."
Judge Gorsuch is such a distinguished nominee that he ought to be confirmed 100-0, but if Democrats try and fail to defeat him, the world should know that they are the authors of their own political frustration.