Democrats need to confirm Gorsuch to save Congress
February 14, 2017
Filed under OPINIONS
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When President Trump nominated Neil Gorsuch to fill the vacant seat on the Supreme Court bench, he did so with his usual, disoriented flair.
One CNN producer reported that they saw Thomas Hardiman – a potential justice pick and federal judge based out of Pittsburgh – on the Pennsylvania Turnpike heading towards Washington, D.C., an apparent attempt to further draw a smokescreen around the announcement.
The announcement itself wasn’t a lucid affair, either. Trump asked Gorsuch to step forward to meet the press, looking over his shoulder to the long, red carpet behind him. Gorsuch and his wife stepped out from the side door.
After the President and Gorsuch shook hands, Trump stepped up to the podium and asked the press, “So was that a surprise? Was it?”
It wasn’t. Gorsuch, an immensely qualified judge, was certainly considered on the short list for the position on the Supreme Court bench that was left vacant by Antonin Scalia after his abrupt death a full year ago.
Senior Democratic lawmakers didn’t want to take the chance. Every Democrat invited to attend the announcement declined to show up, a potential albatross that could signal a battle between Democrats and Republicans to confirm the new justice. Some Democrats have already told the press that they will fight tooth and nail to keep any Trump nominee – Gorsuch or otherwise – from filling the ninth seat on the Supreme Court Bench.
Sen. Jeff Merkley (D-Or.) referred to the position as a “stolen seat” and told Politico “We will use every lever in our power to stop this.” Sen. Chuck Schumer (D-Ny.) and Rep. Nancy Pelosi (D-Cali.) both expressed that Democrats would fight to block Trump’s pick from reaching the Supreme Court.
This, of course, falls in line with Democrats’ so-called “scorched earth” strategy against Trump, refusing to cede ground on any and all of Trump’s nominations. The party is united, rallying to leverage the small amount of power they have left in Congress – the ability to filibuster.
This political battle is one that the Democrats would be better off conceding to Trump and the Republicans in Congress, not only for the sake of political capital, but to preserve a Constitutional statute as they are rapidly dissolving around us.
It is predictable, if not understandable, that Democrats would fight against any Supreme Court nominee put forward by Republicans after the GOP failed to even hear Merrick Garland, Barack Obama’s pick to fill Scalia’s seat on the bench. Garland, to remind you, had more federal judicial experience than any other nominee in Supreme Court history and was the oldest nominee in over 40 years. In every aspect, Garland was a compromise to the Republicans in Congress, and they stamped their feet regardless.
In a time when the outlined directions of our democratic processes are under threat due to unscrupulous executive orders and outlandish staff assignments, the necessity of keeping the judicial branch active and armed is as important as ever. Congressional Democrats can’t abandon their obligations to keep the federal machine well-oiled, even if the cost is a Supreme Court seat.
It’s not as if Gorsuch is an outlandish and unpredictable pick, either. In fact, he is undoubtedly the most qualified of any of Trump’s nominees for their respective positions.
Gorsuch has been serving on the 10th Circuit of the United States Court of Appeals for the past decade, has clerked for two separate Supreme Court justices and briefly worked for the Department of Justice. The Colorado native has been described as a judge in the mold of Scalia, a conservative champion who delivers his opinions in decorative legalese. Among all the dilettantes that Trump has shoehorned into positions of power, Gorsuch stands alone as a figure of intellect, experience and authority.
Democrats realistically cannot block his confirmation on the grounds of inadequate qualifications, but they certainly object to his ideology. Gorsuch is solidly conservative, writing opinions in favor of religious liberties over government health care and questioning the place of the judicial branch in governmental regulations. Much like Scalia, Gorsuch often defers to the “original intent” side of Constitutional philosophy (though a closer look at Scalia’s record would suggest he conveniently picked and chose which decisions to libel the “living document” argument with).
Remember, the Supreme Court is not a static political institution. It, too, bends to the American zeitgeist, and Gorsuch may end up becoming a much needed conservative anchor on a foreseeably progressive Supreme Court in the distant future. The Supreme Court requires the balance of “original intent” and “living document” philosophers.
The confirmation of Gorsuch is perhaps most vital to the institution of Congress itself. A lengthy blockade of Gorsuch’s confirmation could lead to Sen. Mitch McConnell (R-Ky.), employing the “nuclear option” on the Senate floor, a maneuver which would erode Democrats’ ability to filibuster the nominee. Such an abandonment of Congressional procedures would severely damage our legislative practices for years to come. Any insinuation that McConnell is an institutionalist can be easily brushed aside with McConnell’s recent willingness to abandon Congressional duties when he and other Republicans failed to hold a vote on Garland’s nomination.
That kind of obstructionism can breed hostility between the two parties, though the Democrats would be better served to hold onto their political capital instead of just cashing it in at the first opportunity. Since Scalia’s seat became open on the Supreme Court bench, Republicans have viewed it as “theirs” and now have the opportunity to fill Scalia’s position with his ideological clone.
Democrats have other seats to worry about. Ruth Bader Ginsburg and Stephen Breyer, Bill Clinton’s Supreme Court appointees, are both nearing retirement, as is Anthony Kennedy, one of Ronald Reagan’s picks. The real battle in Congress will come if one of the liberal justices decides to retire when Trump is still in office, especially if it comes after the midterm elections, when the Democrats could gain more seats.
Ginsburg, Breyer and Kennedy have not expressly stated that they will leave their positions in the next four years, though Kennedy has heavily hinted at it. With three vacancies and Congressional battles coming up in the foreseeable future, Democrats would be wise to concede the Scalia seat to Gorsuch with little resistance.