Gorsuch, Garland, and Petty Politics

As April 7th nears, the drama over the confirmation of Supreme Court nominee Neil Gorsuch increases. Why is there so much drama? From the Democrats, it the threat of Filibustering the vote to confirm Gorsuch. On the Republican side, it is the threat to eliminate the 60 vote requirement to allow a vote to move forward, something which has never been done, the so-called “Nuclear option.” Piled on top of these matters is the quaint concerns of what the Constitution means and the theft of the seat to begin with.

We have arrived at this point in politics largely because Gorsuch’s seat was “stolen” from Merrick Garland. Republicans denied President Obama the right to appoint a Justice to the high court by never holding a vote. Or, as Senate Majority Leader Mitch McConnell called it “one of [his] proudest moments” to deny Obama his right to fill the Scalia vacancy. Petty politics begets petty politics. And while there is no doubt that Neil Gorsuch is a well-qualified Justice (as The American Bar Association puts it), the same argument can be made for Merrick Garland, who also received the same vote of confidence from the ABA.

The battle over The Supreme Court underscores what people claim to dislike about politics, hypocrisy. Gorsuch’s hearings, a rather boring affair that oscillated between gushing approval from Republicans to the Democrats repeatedly badgering Gorsuch about a dissenting opinion in a case involving a truck driver. The driver was fired for leaving his vehicle due to dangerous conditions, for which he sued. This case was quoted repeatedly, in between Ted Cruz chumming it up with Gorsuch over their shared love of the late Justice Byron White.

Cynically, the most revealing moment of the whole charade was a quote from Gorsuch (among the few answers he gave, because no one wants to be Borked* for transparency), was that “there is no such thing as a Republican judge or a Democratic judge.” With all due respect, this is simply a lie.

Of course there are Democratic and Republican judges. The hypocrisy is in pretending that there isn’t, and that there is no reason Democrats pick who they pick, and Republicans pick who they pick. Mitch McConnell didn’t approve of Obama’s appointee even getting a vote, not because it was his last year in office, but because McConnell wanted a Republican judge, and Obama wanted a Democratic one. Both people want the Constitution to mean (as close to possible) what they believe it should mean. However, to acknowledge that reality would be to diminish the reputation of the Supreme Court while also reducing arguments for and against qualified judges to “I don’t like his view,” and in the age of petty politics, there can be no admittance of the pettiness. The elephant in the room is invisible while managing to suffocate everyone.

Is Gorsuch a Republican Judge? Probably, or at least, very likely. His style of interpretation as an “originalist,” or someone who attempts to interpret the Constitution at the time of adoption generally leads to more conservative outcomes and has been criticized by liberal groups (and some non-liberals). The charges against Originalism are that it perpetuates a limited Constitution, which neither changes with the movement of time, or allows for the inclusion of individuals not considered to be of equal value at the time of the adoption of a particular amendment (women, people of color, the LGBTQ+ community, or any other group of people our brilliant Founding Fathers thought were not worthy of their humanity despite whatever their enlightened 18th Century minds mentally orgasmed to while reading Locke).

On the contrary, proponents argue that it prevents the “Tyranny of the judiciary,” or “legislating from the bench,” as well as giving the Constitution a fixed meaning. There is also the case to be made that by granting limited judgement there is an incentive for the democratic process to solve issues, as opposed to “un-elected people in robes.”

Why should Justices interpret the Constitution with regards to groups that may not have been considered at the time of adoption? Because without that flexibility, the Constitution ceases to exist for many in society, its protections wither into nothingness, due to the failure of the Democratic process to recognize the rights of others.

Critics of this viewpoint will say that the amendment process will save us, but one doesn’t need to look further than the stalled Constitutional amendment procedures which have left additions such as the Equal Rights Amendment to the dustbin of history, collecting cobwebs for 96 years as cases like Reed vs Reed, Roe V Wade, and Griswald V Connecticut fill in the gaps for the failure of Democracy to recognize the humanity in women.

Ultimately, Gorsuch will (likely) be approved either through a normal vote or through the elimination of the filibuster. The Republicans will have won a chess match with the Democrats (once again), and many people will be worse off for it. Gorsuch is 49, the current oldest retired Supreme Court Justice is 96, Gorsuch may very well serve a half a century. The Constitution will contract just outside the grasp of many with only the slim hopes of a ballot box, forever failing the marginalized, as a possible relief.

If we were truly in the age of a “No Democratic or Republican Judges” we wouldn’t be watching the so-called “demise” of the Senate (as, without irony, Orrin Hatch put it). We would be watching a Supreme Court with 9 members including Garland conducting normal business. Or perhaps to make amends, an Olive Branch that Garland would be guaranteed the next seat, an act of good faith to stave off the elimination of the filibuster? Not a chance.

*Robert Bork was a Reagan Appointee who 52 Democrats (and 6 Republicans) voted against in 1987 due to concerns over “ideological extremism.” His answers during his confirmation were considered to be actual answers, a practice nominees since Bork have distanced themselves from to the point where they have no opinions on law, and have been simply flipping coins for their previous decisions.