By Peter Roff • USNews
It’s not clear when the Senate started playing politics with Supreme Court nominations. Some say it’s been that way all along, going back at least as far as the time of Chief Justice John Marshall and Marbury vs. Madison.
Others say the confirmation process only became truly venomous after President Ronald Reagan selected federal judge Robert Bork, a former U.S. solicitor general, to fill a seat that would shift the high court’s delicate balance of power in a rightward direction.
Bork was ultimately defeated, not because he was unqualified for the post – according to the standards in place before he was nominated he could only be described as supremely qualified – but because Senate Democrats feared how he would rule.
They are, one supposes, entitled to hold that opinion and to vote accordingly whenever the matter of a Supreme Court nominee is before them. It is a nasty, messy way to do things, however, and the country has suffered, as it has increased both the polarization and politicization of the judicial process.
As expected, the U.S. Senate Judiciary Committee Monday voted along party lines – 11 to 9 – to recommend the approval of federal judge Neil Gorsuch to the Supreme court, setting him up to take the seat left vacant by the death more than a year ago of Justice Antonin Scalia.
Scalia was a conservative’s conservative and an originalist, meaning he believed the Constitution said what it meant and meant what it said. This is in conflict with the prevailing legal theory on the left, which regards the nation’s founding documents as providing advisory opinions open to reinterpretation by the justices rather than being fixed law.
The votes to confirm Gorsuch are there, and on a bipartisan basis. Leonard Leo, a well-respected legal theorist who is advising the Trump White House on the nomination, said Monday in a statement, “The committee’s vote today is the first vote in a process that will end this week with Judge Gorsuch confirmed to the Supreme Court. Judge Gorsuch is a man of extraordinary legal talent committed to interpreting the Constitution as it’s written. His jurisprudence and decisions are in the mainstream of American legal thought, which is why his nomination has received bipartisan support.”
Truth be told, unless he is significantly more liberal in his thinking than we have thus far been led to believe, adding him to bench and giving the court back its full complement of nine justices really won’t produce much of a change. The fragile five-four center-right majority that has existed since the Rehnquist court will continue; nonetheless, the Democrats are going to fight.
This is not a fight about legal theory; it’s a fight about political power. Democratic Senate Leader Chuck Schumer and company did not expect to lose the last election, did not expect President Donald Trump to be making nominations to the federal bench, and did not expect the Republicans to retain their majority in the U.S. Senate. They want to make the appointment, believing somehow it is theirs to make by right. Once again, they intend to “win by whining,” irrespective of what the American people said in the last election.
According to exit polls, the people who ranked the issue of who should be appointed to the high court as important in determining which candidate they voted for chose Trump over Clinton. It was not by a lot, but it matters. Senate Majority Leader Mitch McConnell was very clear at every turn that he felt the views of the voters should be taken into account before the next judge was picked. This was the principal reason he allowed Barack Obama’s nomination of federal circuit judge Merrick Garland to languish without a hearing or a vote.
In describing how the Senate is to handle the matter of appointments to the court, the Constitution does not specify nominees must be taken up. There is also no requirement anywhere that nominees have 60 votes in their favor in order to win confirmation, a claim Schumer is lately fond of making. He is trying to rewrite the rules so they appear to favor his objective; at this moment to keep Gorsuch off the court, or at least secure a deal allowing him input into the selection of the next justice, something that may come in less than a year.
What is laughable about this is the way the mainstream press has interpreted the reality of the filibuster to keep the vote on Gorsuch from coming to the Senate floor as “a move likely to provoke Senate Republicans into unilaterally eliminating the 60-vote threshold for filibustering high court nominees.” It’s like the scene in “Patton” in which the general – standing for Schumer, for purposes of this analogy, and likewise seemingly on the point of total irrationality – advises a top aide to Gen. Eisenhower on the matter of the Russians: “Look, you and Ike don’t have to get involved, you’re so damn soft about it. You leave it to me. In 10 days I’ll have us a war with those sonsofbitches and I’ll make it look like their fault!”
Unfortunately, no one is on the other end of Schumer’s phone to tell him to back down. Perhaps George Soros needs to make a call. Like recently retired Nevada Sen. Harry Reid before him, the Senate’s leading Democrat has done everything possible to force the GOP to act on the issue of judicial nominations. It was Reid and Schumer, after all, who abolished the Senate’s filibuster on the motion to proceed to executive branch nominees in order to pack lower federal courts with jurists more in line with the previous president’s progressive mindset. To allege now, as Politico did Monday, that this is all somehow the Republicans’ fault is both journalistic hubris and bad reporting.
If 200 years of tradition is to be put to rest this week because Schumer and his merry band of outlaws can’t read election returns, they will likely suffer for it in the long run. It takes 51 votes to confirm a justice to the United States Supreme Court. More than 51 senators are believed ready to vote to approve the Gorsuch nomination if given the chance. Schumer should back down from his threat and his filibuster – but not because he can’t be overcome by a raw exercise of power (he can). It would be in the best interests of the country and the political process for him to do so. If someone has to go first, let him prove he can be the bigger man.