“It’s been a long day and a long week, I want to get some sleep.’”
Allegedly, these were the last words uttered by late Supreme Court justice Antonin Scalia. It would, however, be far more than a week before the vacancy left by his passing would be filled.
For nearly a year (the longest in US history), the political machinations of Republican lawmakers in the Senate prevented them from holding confirmation hearings for President Obama’s nominee for the post, Merrick Garland. Doubtless, the move was intended to postpone the process to await the election outcome in November, which turned out in their favor.
Such devilish behavior is well within the rights of the Senate’s advice and consent power and by no means unique to the right. In his time as Senator, former Vice-President, Joe Biden provided an eloquent defense of the practice during the 1992 Presidential election.
On January 31, President Trump announced his own nominee, Neil Gorsuch. The man is cultured, articulate with a knack for genial humor, and “well qualified” (highest rating given by the American Bar Association for the position). Due to the aforementioned controversy, the well was poisoned from the outset. Gorsuch himself is not unaware of Washington’s ineptitude and increasing polarization. In a 2002 eulogy for Justice Byron White, whom he clerked for, Gorsuch says, “Meanwhile, some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation”. This was the same Merrick Garland nominated by Obama and the same John Roberts who currently serves on the Supreme Court.
In a column for the National Review three years later he said, “Where trial-court and appeals-court nominees were once routinely confirmed on voice vote, they are now routinely subjected to ideological litmus tests, filibusters, and vicious interest-group attacks. It is a warning sign that our judiciary is losing its legitimacy when trial and circuit-court judges are viewed and treated as little more than politicians with robes.”
A clear metric for measuring the decline of the confirmation process is its increasing length. Back in 1962, the hearing of Gorsuch mentor Justice White took a mere 90 minutes. Gorsuch hearings took 3 days!
It seems increasingly likely that Senate democrats will filibuster Gorsuch’s nomination once it reaches the floor. Such a strategy would be inadvisable, not only because it might prompt Republicans to “go nuclear” and remove the filibuster as an option (only requiring a simple majority), but also as it is an inefficient use of political capital. It is no secret that SCOTUS members are elderly and it is likely that more than one is going to kick the bucket while Trump is still in office. Blocking a nomination that is going to pass regardless is futile and appears petty.
It shouldn’t come as much of a shock that Gorsuch espouses originalist views in matters of constitutional law and textualism in matters of statutory interpretation. Certain lines of attack, though not unexpected, are nonetheless shortsighted. Senator Chuck Schumer and his colleagues frequently excoriated the nominee for his decisions in the courtroom, not for the strength or weakness of the germane legal arguments, but rather for the outcome of the decision and those it negatively or positively impacted. It seems prudent to point out at this juncture that the law is specifically designed not to favor one party or the other ex-ante, rich or poor, business or individual.
Judge Gorsuch holds that the duty of the Judicial branch is to apply the law as is, not to impose their moral convictions and policy preferences onto others. Perhaps the country needs a few more doses of such thinking.