Black Lives Matter.
  • Skip to primary navigation
  • Skip to main content
  • Skip to footer

NC Council of Churches

Strength in Unity, Peace through Justice

  • Voices
  • About
    • Overview
    • Staff
    • Members
    • Covenant Partners
    • Issue Statements
    • Governing Board
  • Programs
    • Ecumenical Immigration Alliance
      • Ideas for Action
      • Sign Our Statement
      • The NC Sanctuary Coalition
      • Immigration Bible Study
      • Contact
    • NC Interfaith Power & Light
      • NCIPL Overview
      • Faith in Action NCIPL
      • NCIPL Articles
      • NCIPL Resources
      • Upcoming Events for NCIPL
      • Contact NCIPL
    • Partners in Health & Wholeness
      • PHW Staff
      • Mini-Grants
      • PHW Collaborative Pledge
      • The Overdose Crisis: The Faith Community Responds
      • PHW Articles
      • FAQs
  • Priorities
    • Racial Justice
    • The Overdose Crisis: The Faith Community Responds
    • Gun Violence Prevention
    • Public Education
    • NC Sanctuary Coalition
    • Farmworkers
    • Legislative Advocacy
    • Christian Unity
    • Peace
    • NC No Torture
  • COVID-19 Resources
  • Events
  • Resources
    • Publications & Reports
    • Raleigh Report
    • Lectionary
    • Sermons
  • Donate
  • Council Store
  • Show Search

Search NC Council of Churches

Hide Search

Shock Waves from High Court ‘Nuke’

Steve Ford, Volunteer Program Associate · April 8, 2017 · Leave a Comment

Click here to sign up to receive the Raleigh Report in your inbox

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.

Filed Under: Blog, Homepage Featured, Raleigh Report Tagged With: Civil Discourse, Civil Liberties, Criminal Justice, Elections, Good Government

Steve Ford, Volunteer Program Associate

About Steve Ford, Volunteer Program Associate

Much goes on in North Carolina's state capital that's important to the Council of Churches. I'm glad to have a chance to help follow the action, transitioning from my career with The News & Observer of Raleigh, where I retired in 2012 as editorial page editor. I'm originally from Virginia but have lived in Cary so long I remember the Kildaire Farm barn.

Read more of my commentary here.

Reader Interactions

More Like This

Raleigh Report: Sidetrack for photo voter ID
Raleigh Report: Flawed deal to resurrect Silent Sam
Path to Fairer Maps, Better Government

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Anonymous comments or comments that target individuals will not be posted (please include your first and last name). All comments must be on topic and respectful. Comments will not be posted until they have been reviewed by a moderator. Comments do not reflect the positions of the NC Council of Churches.

Footer

Contact

NC Council of Churches
27 Horne St.
Raleigh, NC 27607
(919) 828-6501
info@ncchurches.org

Facebook

Partners in Health and Wholeness

Featured

Shock Waves from High Court ‘Nuke’

Latest Tweets

Sign the @afsc_org petition calling on the Biden administration to keep Homestead child detention center in Florida closed! Follow the link to take action >> afsc.org/action/take…

Yesterday

Exciting Event! Register now for the screening of the short documentary: "Braided Prayer." The film tells the story of Abraham Jam, an interfaith folk/world music trio making the case that harmony can be even stronger than unity. Featuring @DavidLaMotte >> crowdcast.io/e/85zwf…

About 2 days ago

Recently, the Biden Administration has opened up HealthCare.gov until May 15th to give people who need health insurance a new opportunity to get covered through the Affordable Care Act (ACA) marketplace. Make sure to visit now to get covered!

About 2 days ago

Just last week, our Governing Board adopted a resolution calling for the removal of Confederate symbols in public squares. As people of faith & conscience, we believe such monuments are a constant reminder of prejudice against black and brown people. >> ncchurches.org/2021/… pic.twitter.com/iGCX…

About 5 days ago

"Amanda Gorman in her inauguration poem 'The Hill We Climb' begins with the lines: 'When day comes we ask ourselves where can we find light in this never-ending shade?'" Read more of this 2nd Sunday lenten reflection from Elizabeth Brewington >> ncchurches.org/2021/… pic.twitter.com/pgge…

About 5 days ago

Follow @ncchurches

Latest Tweets

Dr. Satcher questioned the structures that have upheld health disparities in our communities. By laying the foundation for this work, we can continue taking meaningful action towards promoting a society where we can all thrive. #BlackHistoryMonth @HHSGov @Surgeon_General pic.twitter.com/zrw2…

About 5 days ago

Amen! #MindfulTogether twitter.com/cornerpr…

About 6 days ago

RT @MAHECwnc There has never been a better time to quit smoking and vaping. Protect your health by keeping your lungs healthy! #quitlinenc #covid19 #asheville pic.twitter.com/bKlC…

About 6 days ago

Check out this new resource from @DrugPolicyOrg challenging us to dig deeper and work together to uproot the drug war. uprootingthedrugwar.… #harmreduction #mindfultogether

About 6 days ago

Dr. Julian's work was instrumental to the public health community. We carry his passion as we continue reckoning with our past so that we may continue building the beloved community. Learn more about Dr. Julian's legacy at pbs.org/wgbh/nova/ju…. #BlackHistoryMonth @novapbs pic.twitter.com/JJsm…

Last week

Follow @healthandfaith

Latest Tweets

RT @greenthechurch Be sure to read Green The Church's COO Kim Noble's op ed, "#EnvironmentalJustice in Focus this #BlackHistoryMonth", in the Texas Metro News! @Kimrenay22 #Austin #DFW #Houston #Texas #SanAntonio #EJ ow.ly/mOtw50DGQnN pic.twitter.com/IPOO…

About 5 days ago

RT @ActionAidUSA To build a truly just, equitable & sustainable world, we need to fight for a new #socialcontract. That means: ✔️ Defending democracy ✔️ Fighting for climate justice ✔️ Building equitable food systems ✔️ Supporting women’s leadership. Learn more: bit.ly/2M8xT40 pic.twitter.com/fEWv…

About 5 days ago

RT @interfaithpower IPL is proud to be a signer on this letter. The U.S. must provide bold and socially just leadership to protect our communities from the impacts of climate change, including the threats to our economy- @sbhendershot twitter.com/RealBank…

About 5 days ago

RT @interfaithpower "This is all of our country, this is our mother. It's difficult to not feel obligated to protect this land" - @DebHaalandNM with a powerful reminder of what she believes in. Her passion is exactly what we need right now; the Senate must #ConfirmHaaland! #ConfirmClimate

About 5 days ago

RT @EPA EPA is proud to join our agency partners as we tackle the climate crisis and build a healthier, cleaner, more equitable future for all. Let’s do this! whitehouse.gov/brief…

Last week

Follow @ncipl

Latest Tweets

Copyright © 2021 NC Council of Churches · All Rights Reserved · Website by Tomatillo Design · Hosted by WP Engine