The Senate’s inevitable approval of Neil Gorsuch to replace the late Antonin Scalia on the Supreme Court suggests that rather than failing to successfully filibuster President Trump’s nomination, Democrats might have done better to show him the respect Republicans denied to Merrick Garland, President Barack Obama’s choice for the post. At least, that might have won Democrats points with the public for graciousness.
But in the end, it was Gorsuch’s “originalist” views of the Constitution – said by some legal scholars to be more extreme than those of Scalia or his acolyte, Justice Clarence Thomas – that led the minority party to dare Senate Republicans to execute the “nuclear option.”
The Republicans obliged by ditching a Senate rule requiring at least 60 votes to end debate on a Supreme Court nomination. Ironically, Democrats set the precedent for being bombed when they lorded over the Senate and changed the rules in 2013 to allow a simple majority to end debate for all cabinet and judicial nominations except for the Supreme Court.
Invoking the nuclear option now makes it easier for Republicans to ignore Democrats when the next vacancy occurs. That could be soon, given the justices’ ages: Ruth Bader Ginsburg is 84; Anthony Kennedy, 80; Stephen Breyer, 78; Clarence Thomas, 68; Samuel Alito, 67; John Roberts, 62; Sonia Sotomayor, 62; Elena Kagan, 56; and Gorsuch, 49.
Youth is usually associated with liberal views, but Gorsuch’s age disturbs progressives who say it makes him more dangerous. Ian Milhiser, a senior fellow at the Center for American Progress, says Gorsuch, as did Scalia, believes in “originalism,” meaning the only way to properly interpret the Constitution is by examining what its words meant when it was ratified. But while Scalia also stressed the need for judicial restraint, Gorsuch seems to lack such qualms.
Scalia’s originalism, Milhiser said, “was rooted in an understanding that conservatives may not always control the Supreme Court, so judicial conservatives would do well to articulate lines that no judge, liberal or conservative, must ever cross.” In contrast, Gorsuch, “who has spent his entire professional career watching the court grow more and more conservative,” doesn’t have Scalia’s instinct for restraint. In that respect, Gorsuch may more closely resemble Thomas.
The possibility of another Thomas on the court was a better reason than mistreatment of Garland for Democrats to fight Gorsuch’s appointment to the bitter end. After all, in the coming years the court may make crucial rulings on voting rights, gerrymandering, campaign finance, gender identification, affirmative action, and abortion. But the fight was lost months ago. Even if Garland had a hearing, the Senate’s Republican majority wasn’t about to confirm him.
For all the trouble they took to deny Gorsuch his seat, all the Democrats got is a chance to put the shoe on the other foot if they can retake the Senate. That’s not good. This country is desperate for an end to the partisan warfare that has crippled Congress. But the fight over the Gorsuch nomination has taken the Senate farther down the wrong path to where the House is already muddled. Remember when filibuster was a bad word; it actually served a useful purpose.