The Judge Gorsuch Fight Isn’t Worth It
My law school workload has prevented me from writing many of these posts recently. And, admittedly, this post is inspired by the conversations and lectures I have been exposed to recently in law school. So I guess my mind isn’t really wandering far.
Judge Neil Gorsuch was nominated by President Trump to take the seat of the late-Antonin Scalia on the Supreme Court. Regardless of political affiliation, any law student will tell you Scalia was a huge force — a genius among geniuses, and a great writer among great writers. His influence on jurisprudence is undeniable; even the most liberal justices on the Court now automatically are inclined to assess the constitution and text first. He was beloved by his colleagues on the Court, and his writing — especially his dissents — are legendary. His shoes will not be easy to fill.
Are Judge Gorsuch’s feet big enough? Maybe. He is clearly incredibly bright: Gorsuch studied at Columbia, Harvard Law, and received his PhD in Legal Philosophy from Oxford as a Marshall Scholar. He is also well regarded by his colleagues, scholars, and is a respected writer in his own right. Justice Scalia was the proponent of “originalism” and “textualism” across the legal world, and Gorsuch is a product of that movement. President Trump went so far as to describe Gorsuch as “Scalia 2.0.”
To many, understandably, this is not good news. There are two main points of resistance to Judge Gorsuch’s nomination: 1) Originalism is outside the mainstream, conservative/regressive, and therefore dangerous; and 2) it would be politically expedient for Democrats to block his nomination.
Thanks to a little harmless indoctrination by my professor, Lawrence Solum, I take issue with both of these notions. Here’s why:
1) On originalism, conservatism, and the make-up of the Court -
According to Solum, when interpreting the Constitution “judges should be bound by the original meaning of the text.” While there is some debate among originalists as to which “original interpretation” is the correct one, this is nonetheless the core of what originalists believe.
Many, liberals in particular, are opposed to such an interpretation. They would argue we should not allow the dead hands of the Founding Fathers dictate how our 21st century society functions. “I think originalism is, most commonly, a way to advance a regressive political agenda but claim neutrality,” wrote one of my classmates on our class-time Facebook groupchat (I should mention it was an unusually on-topic post. Normally we just exchange insults and this seductive picture of Mickey Mouse.) That said, his position is not uncommon among my peers.
As a first year, I can’t pretend to know enough about law to dip my own feet into the originalism vs. living Constitution debate. In fact, although I am to the right of many of my law school classmates, I am probably not an originalist. However, I do not think this understanding of originalism is complete.
When testifying before the Senate Judiciary committee on Judge Gorsuch’s behalf this Thursday, Professor Solum made this point clear when he remarked:
I’m not a conservative. I’m not a Libertarian, I’m not a Republican, but I do believe in originalism. Why is that? It’s because I’m convinced that giving power to judges to override the Constitution to impose their own vision of constitutional law is dangerous for everyone.
Okay, so you don’t have to be a conservative to subscribe to originalism. So what? Professor Solum went further:
If you’re a Democrat and you know that the next justice to the United States Supreme Court will be appointed by a Republican President and confirmed by a Republican Senate, would you prefer that an originalist like Judge Gorsuch be appointed,” — in other words, someone at least claiming to be bound to the Constitution — “or would you prefer a conservative justice who’s a living constitutionalist, who believes that their values are an appropriate ground for modifying or overriding the constitutional text?
It is not hard to guess the specter looming behind the professor’s warning to Democrats.
The Supreme Court currently stands at a 4–4 split between “liberal” and “conservative” justices: Justices Breyer, Ginsberg, Sotomayor, and Kagan were all appointed by Democrats, and Justices Kennedy, Thomas, Alito, and Chief Justice Roberts were all appointed by Republicans. The appointment of Judge Gorsuch to Scalia’s seat would only return the Court to its previous balance, where Kennedy served as the tie-breaking vote (Remember, Kennedy was the critical vote in the Obergefell case legalizing gay marriage — and then penned the majority opinion himself). So what’s the harm with Gorsuch? Well…
2.) The politics of it all -
Democrats believe, and not without reason, that Republicans stole Justice Scalia’s seat by not confirming President Obama’s pick, Judge Merrick Garland. After all, Judge Scalia died during President Obama’s term, so President Obama should have been the one to fill it. Right?
The Republicans argued that because the seat became vacant during an election cycle, the proper thing to do would be to wait for the presidential election before filling the seat. This is not an unprecedented act. In fact, some have called it the “Biden Rule;” in 1992, then-Senator Joe Biden argued that the Senate should not confirm any of President George H. W. Bush’s possible nominations until after the 1992 election. However, this time around the Republicans have undeniably moved the bar; despite Justice Scalia’s death occurring a full eleven months before the 2016 election, they nonetheless refused to even hold a hearing on Judge Garland’s nomination.
However, to use Professor Solum’s phrase, it would be best for Democrats to resist the tit-for-tat trend surrounding Supreme Court nominations. Filling this seat will only return the Court to its pre-February 2016 balance. But the next vacancy will be much more consequential for Democrats: the three oldest Justices on the Court are Ginsburg, Breyer (two liberals), and Kennedy (the swing-vote). So, if any of these justices die or step-down during Trump’s presidency, it could give the court a new, conservative tilt.
The primary method to block Supreme Court nominations is a Senate filibuster — one of the oldest Senate customs wherein a single Senator can hold the floor and prevent a vote on an issue he or she disagrees with. But, because Republicans control the Senate, they have at their disposal a method to destroy the filibuster and ram Judge Gorsuch through. This parliamentary move is known as the “nuclear option.”
While it is not clear Republicans would go so far as to completely dispose of an ancient senate tradition, they would only being continuing a trend started by Democrats. Early in President Obama’s presidency, then-majority leader Harry Reid used the nuclear option to negate the filibuster for all bench confirmations except for Supreme Court nominees. Political expediency was the excuse of Democrats then, and it just as easily could be the cry of Republicans now.
To sum it up, it may be wise for Democrats to look past the short-term political gains of blocking Judge Gorsuch now (Yes, Trump is unpopular…Yes, the Republicans “stole’ Merrick Garland’s seat… I’m really sorry about all that) because the next Supreme Court nomination will actually change the balance of he Court; if you’re looking for a hill to die on, there it is. And now, with the travel ban, possible Russian-connections with Trump’s election campaign, and Paul Ryan’s dead-in-the-water Obamacare replacement bill, Democrats probably have enough going on in the short-term as it is. Just my two cents.
In closing, by blocking the appointment of Judge Gorsuch, we run a risk of delegitimizing two of our most hallowed institutions: the United States Senate and Supreme Court. Let’s avoid doing that.
