By the time you read this, it’s likely to be over except for the shouting – and wailing. We may have a new Supreme Court Justice by the end of Friday, but it will come at a very high price. Surely there are lessons to be learned from this politically, and perhaps permanently, wrenching experience; one that further divides Congress and the country.
Let’s see how we got to where we are. Issues to consider include how the ‘super majority’ rule came to be, what happens if the “nuclear option” is chosen by the Republicans to move Judge Gorsuch forward, concerns about this particular nominee and finally, how this whole divisive brouhaha could have been avoided in the first place.
The Constitution lists very few instances where a simple majority vote is not sufficient for conducting business; confirming a Supreme Court Justice is not one of them. Examples of actions requiring more than a simple majority include voting for impeachment, overriding a veto, ratifying a treaty and amending the document itself. But over time, the Senate changed the rules to give the minority party the power to block action as long as it reached a super majority threshold. The filibuster is the voice of the minority in action and can stop most votes dead in its tracks – unless the majority party decides to return back to a simple majority – the so-called nuclear option. As applied to the nomination of Judge Gorsuch, a simple majority of 51 votes would be all that’s required for confirmation. And that would alter how future Trump nominees for the Court would be considered as well. But over time, Republicans, who have used the filibuster much more often than Democrats, have greatly benefited from the filibuster and the super majority rule. If you think the filibuster is a bad thing when Democrats use it, you might be interested in knowing that this past Congress held up dozens of Obama’s appointees and refused to consider many more, including and especially judges. The devil isn’t just in the details – it’s also in the eye of the beholder.
If Gorsuch is confirmed today, it’s because the Republican Senate chose to institute the nuclear option returning to the 51 vote simple majority. This may be good for Republicans as long as they hold the Senate, but the day will come, the shoe will be on the other foot and they will rue the day. But Democrats, by filibustering, may force McConnell to proceed using the 51 vote criteria. What if the next Trump nominee is to the right of Attila the Hun? Democrats are sunk without the super majority and filibuster; the ideology of the Court will shift dramatically and for a very long time to come.
So why are Democrats casting their fate on this vote when it’s the next one that will cause that seismic shift? The answer is, at least partially, the nominee.
Confirmation hearings uncovered serious flaws with Neil Gorsuch’s past rulings as well as his performance in private conversations with Senators and publically before the Judicial Committee. He refused to say how he would vote on certain issues, which isn’t unique, stressing he would rely on the law and nothing else. But it’s the ‘nothing else’ that’s bothersome. His ruling allowing a trucking company to fire a driver for leaving his mal-functioning transport, in minus 14 degree weather because he was literally freezing to death, made no sense then and no sense now. And, embarrassingly, the Supreme Court actually struck down a previous ruling of his while he was at his confirmation hearing. Gorsuch ruled that under the Free Appropriate Public Education Act, the bare minimum of services for eligible special needs students met the letter of the law. The Justices disagreed. Trump also said that any nominee of his for the highest court must meet his litmus test and given the opportunity, rule to overturn Roe v Wade. That’s a critical concern when considering government interference in personal decisions and women’s health. And now, after the hearings, it’s been discovered Gorsuch appeared to have plagiarized the work of others. Finally, many senators, after reviewing years of his rulings, have determined Gorsuch as a predilection to vote in favor of corporations and big business and against the ‘little guy.’
So could all this have been avoided? Absolutely. Senate Democrats view this Supreme Court seat as one stolen from the previous administration. When President Obama, fulfilling his duty under the Constitution, nominated Judge Merrick Garland to fill Scalia’s seat, the Republican Senate refused to do their duty under the Constitution to ‘advise and consent.’ McConnell said that because it was ‘so close’ to the end of Obama’s term (11 months), the people should decide who the next nominee should be, as determined by the winner of the 2016 election. That’s just ridiculous. A presidency doesn’t end with almost a year to go and voters don’t determine Supreme Court Justices. Not only did Senate leadership refuse to give this moderate nominee an up or down vote, they refused to even meet with him. In no way could this be viewed as a rejection of Judge Garland; he was never given a chance. It was absolutely and only a rejection of President Obama. But Obama was not up for Supreme Court consideration. Not yet. If and when that day arrives, or consider this, it’s Hillary who’s nominated, be assured it will be a Democrat Senate utilizing the Republican supported simple majority rule.
McConnell and the Senate leadership brought this on themselves. They should have gone through the process, brought Garland up for a vote, and if he lost, that would have been that. Constitutional responsibilities met and time to move on. And even after Trump was elected, and during the transition phase, they still could have gone through the motions, voted Garland down if that was the decision, and moved on to Trump’s nominee. But it wasn’t enough to reject Garland when they also had the opportunity to slap Obama in the face.
So yes; all this angst will follow this highly partisan judge to his new position and forever taint this Senate and the process. If Neil Gorsuch survives, it means the nuclear option has been utilized and a precedent set. Expect the favor to be returned.
Marsha Shearer is a resident of The Villages.
