Our national politics are in an ugly place, driven by an accelerating cycle of suspicion, accusation, blame, recrimination and retaliation. The circumstances by which Neil Gorsuch takes office as a justice of the Supreme Court sadly fit the mold – to the U.S. Senate’s discredit and the court’s peril.
President Trump, with his reckless disregard for long-established norms of presidential conduct, bears his own share of responsibility for the mess. Senate Democrats could rightly question why Trump’s choice for the court deserved the customary deference – what with investigations under way that could cast doubt on the very legitimacy of Trump’s election.
Besides reacting to the president’s troubles, Democrats were harboring an understandable grudge over the Senate Republican majority’s prolonged refusal even to hold hearings on President Obama’s final court nominee, the well-regarded centrist Judge Merrick Garland.
Republicans had argued that the choice of a successor to conservative Justice Antonin Scalia, who died in February of last year, should fall to the winner of November’s presidential contest. Whether they would have assented to Hillary Clinton’s choice, had she defeated Trump, is a moot question. But it’s fair to say that the GOP gamble, as audacious and unprecedented as it was, paid off as Gorsuch on April 7 was confirmed to become the court’s ninth member.
The 49-year-old federal appeals judge from Colorado has telegraphed his “originalist” approach to the law by citing Scalia as a hero. That’s enough to rankle those of us who’d prefer a justice more receptive to the view that the Constitution should be interpreted in light of society’s evolving standards and that, above all, the rights of ordinary Americans must be shielded from the abuses of corporate and authoritarian power.
Still, Trump acted within the historical parameters by nominating a fellow business-oriented conservative who, like it or not, fits recognizably within the Republican mainstream.
By those same parameters, Democrats in the Senate – after concluding that Gorsuch met acceptable standards of education, experience and character – would have conceded that he was qualified to serve even as they disagreed with some of his previous rulings. That’s how Scalia, for example, was confirmed unanimously.
But this time, Democratic opposition in the narrowly divided Senate was staunch – so staunch that it threatened to deny Gorsuch the coveted Supreme Court seat and to deal Trump another embarrassing setback.
That’s when the Republicans resorted to a tactic of parliamentary desperation whose unfortunate consequences could ripple down the decades.
Moderating influence
Most business in the Senate is constrained by a sort of check valve that, as a practical matter, gives legislative minorities a degree of influence over the outcome. With that valve in operation, majorities cannot consistently impose their will simply because they can muster one more vote.
The check valve is the filibuster, otherwise known as the privilege of unlimited debate. While traditional, speak-until-you-drop filibusters these days are rare, a determined minority still can use the Senate’s rules to keep an issue from proceeding to a final vote. Only through passage of a so-called cloture motion, which requires the support of three-fifths of the 100 senators, or 60 of them, can a filibuster be stopped.
Some minority members typically would have to go along for cloture to be invoked. In the current Senate, for example, with 52 Republicans and 48 Democrats, at least eight Democrats would have to agree with a unified Republican caucus to cut off debate on an issue and proceed to a final vote where a simple majority would prevail. The effect is to encourage consensus when the Senate is considering issues where the filibuster tactic can be used.
If no consensus can be reached, however, a filibustering minority can jam the legislative gears. That’s what happened when Senate Republicans, then in the minority, refused to allow several of President Obama’s lower court picks to come to a vote. Under then-Majority Leader Harry Reid, frustrated Senate Democrats changed the rules to bar filibusters when the Senate was considering nominations to the lower federal courts.
The filibuster privilege was retained for Supreme Court nominations – an acknowledgement that the nation is well-served when presidents’ choices for the high court can draw support from both sides of the aisle. Republicans didn’t like Reid’s overall move, but they were fine with keeping the privilege of filibustering to block a Supreme Court nominee.
Code red
Then, the tables turned, with a Republican president trying to move his court nomination through a Senate controlled by his own party but also featuring a sizable minority of frustrated, angry, worried Democrats in no mood to cut the president any slack.
With only a handful of their number prepared to break ranks and vote for cloture, Senate Democrats were in a position to keep Gorsuch off the court. Majority Leader Mitch McConnell –a master obstructionist when his party was in the minority and Obama was in the White House – responded by unleashing the so-called nuclear option to force the nomination through.
At McConnell’s urging, the GOP majority again changed the rules, this time to take the filibuster out of play when Supreme Court seats are at stake. That cleared the way for an up-or-down vote, and Gorsuch was approved by a 54-45 margin.
Progressives can lament that the court’s potentially tie-breaking ninth seat goes to someone so forthrightly aligned with Scalia’s narrow-minded and at times even bizarre view of the justices’ proper role. It’s a view that has contributed to judicial travesties such as the Citizens United campaign finance ruling, by which corporations can spend unlimited amounts of money in ostensibly independent campaigns for or against candidates. And it’s hostile to individual rights not specifically mentioned in the Constitution, such as the right of same-sex couples to marry, which the Supreme Court now has affirmed.
It’s no wonder, frankly, that Senate Democrats asked themselves why they should graciously agree to confirm someone cut from this kind of cloth – in effect agreeing to let him serve for what could be another 30 or 40 years — when his White House sponsor after a mere two-plus months in office has stumbled into a thicket of troubles from which he finally may not be able to escape.
Trump the high-flying real estate wheeler-dealer has defied basic, common-sense protocols involving conflicts of interest.
Activities of figures who were instrumental to his campaign are being probed by federal authorities in connection with attempts by Russia to tilt the election away from Hillary Clinton.
The Senate Intelligence Committee, even with Republicans in charge under North Carolina’s Richard Burr, seems to be giving those Russian efforts a measure of the attention they deserve. Not to put too fine a point on it, but what if a year from now, Trump is out of office – and Gorsuch is settling in to serve until the middle of the century?
Bench erosion
For all that, McConnell and his fellow Republicans weren’t going to allow the Gorsuch nomination to fail. Too much was riding on it for their party and their president. The nuclear option looked to be their only recourse. It could be said, then, that the Democrats who refused to forgo their filibuster will have to share the blame for seeing the nuclear button punched.
Why blame? Because without the need to attract at least some minority support, a president whose party controls the Senate will be able to put someone on the court who appeals to that party’s most ideological, doctrinaire elements, whether right or left.
Over time, that is a prescription for an even more deeply polarized court, where decisions emanate from the political extremes and where consensus is rarely found. The court’s credibility as the final arbiter of constitutional meaning and correct application of the laws will be at risk of erosion amidst an intensifying stream of dissents.
It perhaps could be said that the Gorsuch nomination wasn’t where the Democrats should have drawn the line. After all, his elevation to the court simply restores the philosophical make-up that existed while Scalia was alive. The stakes will be higher when and if one of the court’s liberal bloc, none of whom is getting any younger, departs.
Yet the Gorsuch confirmation has the effect of rewarding bad behavior – of McConnell and his caucus, when asked to approve the entirely well-qualified Garland, and of Trump, whose campaign reached new depths in demagoguery and whose administration has gotten off to what could be the most alarming start ever. Whatever it will take to begin to cure our nation’s political ills – the rancor, the disrespect, the scapegoating and the intolerance – it will probably have to begin with a repudiation of those who want to turn the dysfunction to their benefit.
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