by Michael Dorf
In the coming days and weeks, my co-bloggers and/or I will undoubtedly have a fair bit to say about Judge Gorsuch's record and what it likely portends for his tenure on the Supreme Court. That is inevitable. This is a blog about law, my own special focus is constitutional law, which is an interest of most of my co-bloggers as well, and a Supreme Court nomination is undoubtedly a big deal.
It is also true that I regard Judge Gorsuch's confirmation as essentially unstoppable. Democrats can filibuster and perhaps they will successfully maintain party discipline, but a world in which Senate Democrats have that kind of party discipline is almost certainly a world in which Republicans invoke the "nuclear option" and use the same mechanism to invalidate the cloture rule for Supreme Court nominees that Democrats used a few years ago to invalidate it for executive branch and lower federal court nominees.
Accordingly, as the proprietor of a quasi-news site, I do not intend, nor would I ask my co-bloggers, to sit on the sidelines during debates over Judge Gorsuch's qualifications, record, and likely voting pattern as a SCOTUS justice. Having said that, however, I want my first foray into this discussion to be a disclaimer: Nothing that you will read here about the merits of Judge Gorsuch as a SCOTUS nominee should be taken as recognizing the legitimacy of his nomination. The seat to which Judge Gorsuch has been nominated rightfully belongs to Judge Merrick Garland, as Dawn Johnsen explains on Slate.
That is a judgment that has nothing to do with Judge Gorsuch. Had Justice Scalia passed away after the election or even in the month or two right before the election, I would have expected that in the normal course of things, a Republican president with a Republican majority in the Senate would nominate a conservative. Judge Gorsuch appears to be eminently well qualified as a matter of professional competence, albeit much too conservative for my taste--by one measure more conservative than Justice Scalia was. However, because Democrats (as well as Republicans) have traditionally held a variety of views on when one ought to oppose a nominee on the basis of ideology alone, as well as on when one ought to attempt to filibuster a nominee on that basis, I would still have expected a Republican president to be able to get 60 votes to hold a vote and then a majority to confirm someone like Gorsuch.
That would have been true pretty much regardless of who the Republican president was. During his first eleven days in office, President Trump has already shown that he is no ordinary Republican, but in nominating Judge Gorsuch to the Supreme Court he has acted exactly the way I would have expected any Republican president to act. This is not a Trumpian issue. It's a Republican issue.
Hence, I believe that the Democrats will be justified in filibustering Judge Gorsuch, even if the effort proves futile. Whether they ought to do so strikes me as an entirely tactical question at this point. Will forcing the issue do more to fire up the Democratic base or the GOP base? How will it play with voters in states in which Democratic Senators are up for re-election in 2018? Will those voters remember or care? I don't pretend to know the answers to these questions.
I do know that the system is broken. We have or will in any event soon have a system in which Supreme Court vacancies that arise when the Senate and the presidency are controlled by different parties will remain vacant until the same party controls both. That, in turn, will increasingly lead to a very polarized Court, as each party will nominate and confirm strongly conservative or strongly liberal justices when it can, because there is no reason not to. In this prisoner's dilemma, any other course is a sucker's game.
There is, to be sure, a sense in which Democrats share responsibility for the current state of affairs. Democrats did more than Republicans to make ideology a standard ground for rejecting a professionally qualified nominee. And Democrats under Harry Reid exercised the nuclear option--although they did so in response to new levels of obstructionism by Republicans. But who "started it" and who is more to blame is by now mostly beside the point. If it were possible for Democrats and Republicans to reach some sort of binding agreement whereby old norms of deference to the president were restored and strengthened, there might be something to be said for that approach, but we are nowhere near anything like that now. For Democrats to treat the Gorsuch nomination as a "normal" nomination to which a norm of deference to the president applies simply because they think that is a norm that both parties ought to respect in a perfect world right after and as a direct result of the Republicans' norm breaking with respect to Judge Garland would be to be played for suckers.
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12 comments:
"Democrats did more than Republicans to make ideology a standard ground for rejecting a professionally qualified nominee."
I don't even think they did the same, but that might be a hard thing to prove. And, I might be a bit biased. But, more? Since when? Don't think so.
Thank you for sharing your view. Even I think Democrats did more than Republicans. http://ukessaywriters.blogspot.com/
Joe,
Since Bork, whose professional qualifications surpassed even Garland's. Moreover, even after Bork (and Thomas), ginsburg and Breyer both sailed through with overwhelming Republican support, yet Roberts and Alito then had to overcome overwhelming Democratic opposition. Only at that point did republicans oppose Sotomayor and Kagan.
A similar timeline applies at the CA level, starting with democratic obstruction for Estrada et al.
You people are missing the point here. Mr. Dorf's position, as I see it and my own position is that the Garland rejection was not a rejection by one party due to its opposition to the political or judicial philosophy of the nominee. It was a rejection of the legitimacy of the duly elected President of the United States to nominate a Justice, as is required by the Constitution. The Garland rejection was a partial Coup d'etat by the Republicans against the Constitution and a usurption of power unprecedented in American history.
The Gorsuch seat is a stolen seat, it will always be a stolen seat and nothing can ever change that. When he takes his seat as we all believe he ultimately will his seat will be an indelible stain on the Court and the Constitution.
Joe: Hash cites the history I had in mind.
Since Bork
Since Bork? Why start in 1987? To me, the modern era started with Fortas being blocked, largely for ideological reasons (though others were found). Then, again largely for ideological reasons, there was a strong move to impeach Douglas. And, Nixon/Reagan made ideology a key requirement when picking judges. Carter was more concerned with diversity. Eventually, Democrats responded.
whose professional qualifications surpassed even Garland's.
Bork was a key swing vote on SCOTUS and was a special case. It wasn't the first time ideology resulted in a pick being blocked. And, what did Democrats do? They had hearings. They had an up/down vote. They, in an election year, confirmed Kennedy.
Moreover, even after Bork (and Thomas)
Skipping Kennedy and Souter. It helps to selectively quote history here. Thomas again was not a run of the mill case. Democrats would have confirmed Thomas, a strong conservative, but sexual politics involving the harassment issue complicated things. Ideology wasn't the issue there. For someone replacing THURGOOD MARSHALL.
Ginsburg and Breyer both sailed through with overwhelming Republican support, yet Roberts and Alito then had to overcome overwhelming Democratic opposition.
And, Democrats gave "overwhelming" support to people before 2000 too as a whole. Meanwhile, the Republicans repeatedly blocked Clinton lower court picks, increasing the temperature there. Again, why is this being ignored?
A similar timeline applies at the CA level, starting with democratic obstruction for Estrada et al.
Nope. The Republicans repeatedly blocked Clinton nominees. And, meanwhile, ideological battles as a whole (including impeachment) occurred generally. The courts were affected by this too. But, making it out as if the Democrats "did more" here is selective history. Even there, Democrats eventually had the "Gang of 14" moment and most of the controversial appellate picks were confirmed. And, then Republicans again played hardball during the Obama years, even for people that clearly had no "extraordinary circumstances."
By the second term of the Bush Administration, yes, this eventually affected Supreme Court confirmations though even there Roberts got significant Democratic support. 78-22 was the final vote. Nine Republicans voted for Sotomayor. Alito was not a run of the mill vote either but yes few Democrats supported someone who shifted the Court by replacing a key swing vote.
So, what history? There was back/forth the lower courts. Republicans starting with Nixon upped the ideological litmus tests. Democrats eventually responded & even there Carter/Clinton/Obama was less or at most as concerned with that (including by picking somewhat older judges). I'm sorry. I'm not going to ignore the whole picture here.
[To forestall any claim of selectivity, yes, the Democrats responded immediately to blocking Fortas by blocking two Nixon appointees, though one at least had separate issues; but big picture, the court battles of late didn't arrive until later]
The thing that rankles is the Republicans had the votes to do what Democrats did with Bork. Hearings, up/down "no" vote. Upsetting, but those the rules.
But, Obama was crafty there, even though some sneer at him picking an older white guy. Obama knew Garland was a great pick to replace Scalia in various respects, one Republicans repeatedly offered as an ideal one in the past. Republicans knew if they gave him hearings, it would backfire. There would be a push to confirm & a few of them like Collins might even be inclined to do it. Plus, yes, their m.o. of late was "no quarter." This is horrible civics for those who care, but c'est la vie, you know?
I thought it was a risky bet but shame on me. Trump won.
Neil Gorsuch is the Republican version of Merrick Garland. In a saner time, he would be easily confirmed with broad, bipartisan support, even from Senators who, if given the choice, would not have nominated him. But in a saner time, Merrick Garland would have been easily confirmed with broad, bipartisan support, even from Senators who, if given the choice, would not have nominated him, and there would not have been a vacancy for Judge Gorsuch to fill. Whatever happens next, and I make no predictions, it will have almost nothing to do with Judge Gorsuch and everything to do with payback for Merrick Garland.
To add to Joe's further history beyond that of Hash and Mike, Bush v. Gore (5-4, 2000) cannot be ignored.
"Fortas being blocked, largely for ideological reasons (though others were found). Then, again largely for ideological reasons, there was a strong move to impeach Douglas. And, Nixon/Reagan made ideology a key requirement when picking judges. Carter was more concerned with diversity. Eventually, Democrats responded."
While it wasn't known, at the time of Fortas's nomination for Chief Justice, that he was accepting a retainer from a former client under criminal investigation in order to secure him a potential pardon, and that he lobbied the President for that pardon, it was known that a group of businessmen paid Fortas 40% of his salary to teach a class at American University, and seven times more than what anyone else had ever been paid to teach a class at American. It was also widely known that Fortas regularly gave the President legal advice while sitting on the Court and then lied about doing so in his confirmation hearings. Johnson had to lobby Democrats in the Senate to vote to kill Fortas's filibuster, and even so, in a Senate with a 32-seat Democratic majority, only 45 Senators voted to kill Fortas's filibuster. 19 out of 66 Democratic Senators voted against cloture, and another dozen absented themselves. Which is to say, barely over half of the President's own party voted to kill the Fortas filibuster. If he couldn't even get a majority of the Senate to vote for cloture, it's highly unlikely that he ever would have been confirmed by the overwhelmingly Democratic Senate, filibuster or no. So no, this wasn't a partisan Republican block. It was a bipartisan rejection of a severely compromised nominee who was forced to resign from the Court in disgrace just a year later.
The rest of what you say is even more inaccurate; somehow you conflate who the President nominates with ideologically blocking Supreme Court nominees. Of course Nixon and Reagan attempted to nominate conservatives, just as Wilson nominated progressives, FDR nominated Justices sympathetic to his program, more often than not from within his own administration, after attempting to pack the Court with still more friendly Justices, and Kennedy and Johnson nominated moderate to liberal Democrats. Carter never had a Supreme Court nominee but his notable lower-court nominees (Stephen Reinhardt, Ruth Bader Ginsburg to the D.C. Circuit, Abner Mikva, Harry Edwards, Stephen Breyer to the First Circuit) skewed liberal; there's no evidence that he sacrificed ideology to diversity. What you neglect to mention is that before Bork, Democrats rejected two of Nixon's Supreme Court nominees, one of whom, Clement Haynsworth, was a very fine judge and hardly the segregationist he was portrayed as being.
Digging deep into the historical pile of Nixon's presidency to come up with Clement Hayneworth with faint praise as " ... hardly the segregationist he was portrayed as being" ignores Nixon's Southern Strategy. There was more than a tad of Republican Senators voting to reject him.
The Court has long been political, going back to CJ Marshall who in Marbury v. Madison neglected to mention his political pre-Justice role in the brouhaha of that case.
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