Neil Gorsuch will be confirmed to serve on the U.S. Supreme Court. Republicans will change the rules to ensure it.
This leaves Democrats, who are rightfully angry about Republicans blocking even a hearing on Merrick Garland — former President Barack Obama’s Supreme Court nominee — with few good options. Filibustering Gorsuch’s nomination, as Democrats have vowed to do, is an ineffective strategy, however.
The problem for Democrats is that their standard for a lifetime appointment to the Supreme Court — a moderate judge who will uphold the law as they see it — doesn’t matter. Without control of the White House and both chambers of Congress, Republicans have huge leverage and leeway in lawmaking and judicial nominations.
We can’t expect a reasonable Supreme Court nominee because a reasonable person wasn’t elected president and a reasonable person doesn’t run the Senate.
Against this backdrop, Gorsuch, who serves on the 10th Circuit Court of Appeals in Denver, is a sensible nominee, even though there is much that concerns us about him. We especially dislike his breezy dismissals of the concerns of working-class people and parents of children with disabilities in his written opinions, which show he lacks an understanding of, and empathy for, the struggles of everyday Americans. In the latter case, the Supreme Court unanimously rejected his ruling involving an autistic student the same day Gorsuch was appearing before the Senate Judiciary Committee.
We fully understand Democrats’ anger and frustration over the treatment of Garland, an eminently qualified judge whom Obama nominated to fill the seat vacated when Justice Antonin Scalia died unexpectedly in February 2016.
Senate Majority Leader Mitch McConnell had lots of excuses for refusing to even hold a hearing on the nomination. Essentially he stonewalled the Obama administration and got away with it, leaving the court with four conservative-leaning and four liberal-leaning justices. This is wrong, but, sadly, there are no consequences for McConnell or the Senate Republicans who went along with him. Sen. Susan Collins broke ranks with McConnell saying she was “more convinced than ever that the process should proceed,” after meeting with Garland last April.
Filibustering Gorsuch’s nomination, the only option Democrats have if they want to even play a role in this drama, will not punish McConnell or other Republicans for their misdeeds. Instead, McConnell will resort to what is known as “the nuclear option.” He will change Senate rules to allow Supreme Court nominees to be approved with a simple majority vote, not the 60 now required.
When Democrats controlled the Senate, Majority Leader Harry Reid invoked the nuclear option in November 2013 to undo a logjam of judicial appointments. The rule change then allowed for majority votes to approve nominations of executive office officials and judicial appointments, but not appointments to the Supreme Court. At the time, Republicans were stalling three Obama nominees to the U.S. District Court for the District of Columbia, which handles some of the country’s most complex cases.
By going down this path now, and eliminating the possibility of a filibuster on future Supreme Court appointments, the Democrats will have no ammunition if Trump gets to nominate another justice. This is a strong possibility as Justice Ruth Bader Ginsburg is 84, and court scholars believe Justice Anthony Kennedy, who is 80, may retire knowing that the court will move to the right with his departure. Gorsuch was a law clerk for Kennedy.
If another seat on the court opens up, we find it hard to believe Trump will nominate someone as rational as Gorsuch. With the filibuster for Supreme Court nominees gone in a Republican Senate, an anti-choice, anti-equality nominee would have a much easier path to the high court. Such a new member of the court would tilt it to the right for a generation.
Democrats should save their battle for then, when they need to be counted on to preserve the integrity of the court, and America’s laws.
