Senate Majority Leader Mitch McConnell's decision in March 2016, to sit on President Obama's nomination of Merrick Garland to replace Antonin Scalia was the most consequential political act of the year. The tangible promise of a judicially and socially conservative Supreme Court justice was a critical factor in Donald Trump garnering an 80% share of white Evangelicals and 60% of white Catholics despite his substantial moral shortcomings. It also gave the conservatives an opportunity to hold their majority on the Supreme Court for at least a decade.
First, some impartial thoughts:
- By any objective standard, Judge Neil Gorsuch is an outstanding nominee for the Supreme Court. Columbia, Harvard, Oxford; young successful partner in a top law firm; clerked for Justices Byron "Whizzer" White and Anthony Kennedy; rated "Highly Qualified" by the American Bar Association; approved in 2006 without opposition by the Senate for the Federal Appeals Court in Denver.
- With the progressive Left in full revolt over the November election, and the Republicans able to confirm virtually all of Trump's cabinet cabinet appointments with no Democratic votes, Democratic Senate leadership is compelled to attempt to block the only position which requires 60 votes under current rules. After what McConnell did to Garland, they at least have a talking point for voting "no".
- It is best if the 60 vote threshold survives as it helps ensure that Supreme Court justices are not too far away from the mainstream. In the abstract, members of both parties like the 60 vote filibuster rule because it increases the leverage of each Senator.
- The Republic is best served if the Supreme Court contains at least one brilliant, articulate advocate from the judicial Left and one from the judicial Right. Gorsuch replaces Scalia, without the flair; the four judges on the Left - Breyer, Ginsberg, Sotomayor, and Kagan - do not have a match.
- Nothing is forever. Republicans are riding high now and have a favorable slate in 2018, but in 2020 Trump would have to be re-elected and two-thirds of the contested Senate seats will be Republican. There is a reasonable path, however, to a conservative court for decades.
And, some partisan thoughts:
- Bring it on !!! After a week of protest marches and media hysteria it is good to have a paramount issue where the angels will win.
- Let the pundits and Senate vote counters opine, but Mitch McConnell has vowed that Gorsuch will be confirmed, hopefully with Democratic defectors. Not surprisingly, Trump has advocated the "nuclear option", changing Senate rules to extend Harry Reid's "51 is enough" to include the Supreme Court. It is the Democrats choice whether it is 51 or 60, but it is not their choice whether Gorsuch will be approved.
- With 23 Democratic senators and two Independents running for reelection in 2018 - 10 in states carried by Trump, and with Judicial Crisis Network spending millions to pressure exposed Democrats - they would pay a heavy price for symbolic opposition. It is conceivable that Republicans could gain a filibuster-proof Senate majority, opening the door for far less attractive nominees than Gorsuch or some others considered in this cycle. Mitch McConnell apparently does not believe that, whatever Chuck Schumer or George Soros wants, the party will be able to commit suicide. The "nuclear option" will not be needed.
- The Gorsuch confirmation will not change the Court which has long been 4 conservatives, 4 liberals, and Anthony Kennedy who votes with the conservatives much of the time. With the 49 year old Gorsuch, it does extend the time horizon, and if Kennedy (age 80) chooses to retire, the team of Roberts (age 62), Alito, (age 66), and Thomas (age 68) could gain a fifth vote to carry it for a decade. While Kagan (age 56), and Sotomayor (age 62) will be around, the Ginsberg (age 83), and Breyer (age 78) seats could make it as much as a 7-2 conservative majority before Trump leaves office.
The other issues of the day are transitory: how long it takes Cabinet secretaries to be approved; perhaps one or two defeats (DeVos?); the poorly handled roll out of temporary immigration procedures; the official membership of the National Security Council. Even the details of the Obamacare replacement legislation and the tax code revisions will have less lasting importance than a Supreme Court which believes that our liberty is best protected by the simple premise that the oath "to support and defend the Constitution" means the document as intended by the authors.
This week's video of Betsy DeVos' Senate testimony with Senator Tim Kaine reflects the type of answers which caused Republican Senators Murkowski and Collins to declare against confirmation.
bill bowen - 2/3/17