Supreme Court Battles

Donald Trump has nominated Judge Neil Gorsuch to the Supreme Court of the United States (SCOTUS). I have not read many of Judge Gorsuch’s opinions. However, based on what I have read (both by and about him), my initial reaction is negative. His views seem to be very much on the opposite side of the socio-political spectrum from mine. But those differences are within “normal parameters” (to continue borrowing P.J. O’Rourke’s terminology). Thus, in ordinary times, my inclination would be to voice criticism about the nomination but recognize that a President — with his party holding the majority in the Senate — is entitled to have his nomination confirmed.

But these aren’t ordinary times.

Let’s remember that Justice Scalia died nearly a year ago. Before the cause of death had even been announced (and don’t forget that Trump suggested foul play…), Senate Republicans stated that they would not consent to any nominee from President Obama. It didn’t matter that Judge Merrick Garland was well-respected, that GOP leaders had previously said that if he were a nominee, they would consent to his appointment, or even that they could go through the process of nomination hearings and then vote the nomination down. Nope. Instead, Republicans stonewalled for 10 months, refusing to even consider the nomination. Republicans argued, in essence, that a (black) President is not entitled to nominate a new Justice during his last year in office or during an election season. And they made up all sorts of … um … “alternative facts” to support their twisted and tortured reasoning.

Shameful and disgusting are the two words that first come to mind to describe those actions by the Senate Republicans. An attack on our democratic institutions is a phrase that also comes to mind.

And then, almost unbelievably, things got even worse. Think back to the waning days of the 2016 electoral season when several Republican Senators (including John McCain, Ted Cruz, and Richard Burr) said that they would never consent to any Supreme Court nominee put forth by President Hillary Clinton. In other words, the rules for Supreme Court nominations, as articulated by Republicans, appear to be that Democratic Presidents — especially blacks or women — are no longer entitled to have their nominations to the Supreme Court confirmed by the Senate and that vacant seats on the Court must remain that way until a Republican is in the White House.

And then the Republicans won the White House and maintained a slim majority in the Senate.

Now that Trump has nominated Judge Gorsuch to the seat that should have been filled by Judge Garland, Republicans are outraged — outraged! — that Senate Democrats might try to block the nomination.

Hmm. Well, according to their own rules, we should wait for the next election to let the people speak as to whether the people approve of Judge Gorsuch, just as Republicans wanted to let the people speak with regard to the nomination of Judge Garland (and apparently 3 million more people approved of Judge Garland than those who disapproved…). Oh, and we are in a Presidential election season; after all, Trump broke with tradition and has already filed paperwork to run for re-election in 2020.

(By the way, it’s worth noting that President Obama and Democrats had several ways that they could have countered Republican obstruction, including a recess appointment, claim that Republicans failed their Constitutional obligation, or a confirmation vote between the end of the previous session of Congress and the swearing in of new and re-elected Senators, but Democrats were apparently not willing to “blow up the system” and force a Constitutional crisis the way Republicans seem to be. Just food for thought.)

I’ve seen some commentators suggest that Judge Gorsuch be treated to the same degree of courtesy and consideration shown to Judge Garland. I actually disagree with that statement. I think Judge Gorsuch should be shown the same degree of courtesy usually afforded to a Supreme Court nominee. But Democrats should hold firm and use whatever powers they may have to be sure that no Supreme Court nominee is considered until Judge Garland takes his rightful seat on the court.

In fact, given the degree to which Senate Republicans blocked or delayed President Obama’s other judicial nominees (at an unprecedented rate), I think that Senate Democrats should use all of their powers (which may not be much…) to block all of Trump’s judicial appointments until outstanding Obama appointments are given due consideration.

I’ve also heard the suggestion that Democrats should consent to Judge Gorsuch’s nomination and hold their fire for the battle if and when a liberal member of the Supreme Court retires or dies. The problem with that strategy, as I see it, is that there is no reason to believe that the Republicans would view Democrats’ graciousness now in any sort of favorable way later. Yes, Republicans might try to do away with the judicial filibuster now. But if Democrats don’t filibuster Judge Gorsuch’s nomination and save that tool for a later nomination fight, why do we think that Republicans wouldn’t just do away with the judicial filibuster then?

Look, I don’t like these sorts of political games. I really don’t. I think that both sides need to “get along” and work together to find bipartisan solutions to important issues. I really do. But when one side chooses to abuse the system (remember when Republicans filibustered their own bill and nominees that they recommended; remember when they filibustered the appointment of a chair for the Consumer Financial Protection Bureau, not because of his qualifications, but because they didn’t like that new governmental bureau; remember when they continued to hold sham “sessions” at which no business was transacted in order to keep President Obama from making recess appointments) and to put politics ahead of both tradition, comity, and country, then perhaps two wrongs can make a right. Maybe some of the more principled Senators will recognize that brinksmanship and these sorts of efforts to destroy the system are actually bad for the country. Maybe. But if Democrats don’t even try to stop this nomination, if they just roll over and play dead (as they seem to have done so many times before), then Republican malfeasance will be rewarded and will become the standard way of doing business (at least when Democrats are in the White House).

Will the Democrats be able to stop Judge Gorsuch’s nomination (or the nominations of others)? Probably not. But they must try. They must put up the “good fight”. They must show the Republicans that total obstruction and gridlock is a weapon that can be wielded by both sides.

And perhaps Senate Republicans should consider one more thing if they continue to act as they have been: Let’s just say, hypothetically, that in 2018, Democrats retake the House and Senate (remember that the party holding the White House traditionally loses a number of seats in those off-year elections). If I was a Democratic Congressman, I might think about filing articles of impeachment against Justice Gorsuch (or whoever occupies Justice Scalia’s former seat) because that seat should have been occupied by Judge Garland. High crime or misdemeanor? Well, I’d argue that a blowjob was neither, but it was, then perhaps “theft of a Supreme Court seat” might also qualify. Senate Republicans need to remember that if they want to use the rules to play politics at the expense of the country, then at some point the proverbial shoe will be on the other foot. But until then, it is likely that Senate Republicans will hear the desire of Trump and many of his supporters to bring chaos to the system and to burn down the institutions that have worked so well for so long.