“Was that a surprise? Was it” Quipped Trump. Trump announced Judge Neil Gorsuch as his supreme court nominee in a ceremony in the East-room that reflected his roots as a reality tv-star remarkably well. It was even reported that Trump had brought not only Neil Gorsuch but also a ‘second’, Judge Thomas Hardiman, to the White House, going for a true Apprentice style ceremony. Taking into account that a supreme court pick shapes a fundamental judiciary institution for decades, the fact that that report was erroneous might be for the best.
As a supreme court justice, Gorsuch’ signature can mean a permanent roadblock for bills and other pieces of legislation. Gorsuch is thus destined to meet tough questions from both sides of the aisle. The first two days of hearings saw Democrats focusing mostly on obvious questions concerning Gorsuch’ stand on abortion, women rights and his apparent favor of big business. Republicans have been busy asking questions about The Hitchhiker’s Guide to the Galaxy and how his surname is pronounced, but mostly easy ones on the role of a justice and the judiciary as a whole. As the current Republican President is not so sure about the role of the judiciary nor the concept of the trias politica, they may be asking the wrong person.
After all, Democrats haven’t been able to fully grab on to Gorsuch. Democrats hoped to find any foundation for their opposition in his solidly conservative judiciary record, the recent allegations by a student concerning his view on women and his partaking in defending Bush’s ‘advanced interrogation’. His rebuttals were laser-sharp and well-substantiated leaving Democrats – Sen. Feinstein in this case – with nothing more than: “Oh, that’s helpful”, referring to Gorsuch’ recital of cases in which he favored the ‘small man’. According to two recent papers – here and here – judge Gorsuch can be categorized as a slightly more conservative judge than average; overall, one can argue that Democrats’ claim that Gorsuch is an ‘extremist’ is outright nonsense. Second, note that Democrats, if it were up to them, would have chosen a similarly liberal-leaning judge. Third, note that with a new conservative judge, the 5-4 split in the Supreme Court will remain.
Lastly, an important factor in the confirmation process is Gorsuch’ identification as an originalist. Now, many has been written on this, some of which I find to be complete nonsense – bluntly describing Gorsuch as a homofobe – some of which I find noteworthy. Judges who adhere to originalist legal thinking interpret the constitution in the light of its original meaning, in 1789, that is. Democrats have – as I noted before – strong concerns with regard to, for example, gay-rights and new technologies. “The technology changes but the principles don’t” said Gorsuch, hinting at a ‘lighter’ version of originalism. Wherein times can change but the principles as written in the constitution remain the leading factor with regard to the decisions of the respective judge – Mr. Gorsuch in this case. Such notions are, quite evidently, music to the ears of any conservative. Again, all the legitimate concerns the Democrats had concerning Gorsuch’ originalist approach were easily rebutted.
Thus, on the one hand Democrats can make their progressive voters happy and cement their role as ‘the opposition’ by voting no. A no-vote will, however, result in the Republicans going the ‘nuclear’ route by abolishing the 60-40 majority needed, after which they will give Gorsuch his lifetime job anyway. On the other hand, Democrats could vote yes – or at least eight of them. See, Gorsuch is, however conservative, a calm, well-tempered judge with excellent scholarly and judiciary records and, most importantly: Gorsuch has no affiliation with Trump whatsoever and has denounced his relentless attacks on the judiciary and the press. Besides, by voting yes, Democrats would not lose their filibuster-power in upcoming, more important, votes.
Of course, Democrats have one tiny leg to stand on. Federal Paper #76 states that a supreme court nominee may be picked by the President since he is a ‘man of abilities, at least respectable’. I have some doubts in that respect.
I saw that David Leonhardt prompted Democrats to oppose judge Gorsuch. His article came down to the notion that voting strategically – avoiding the ‘nuclear’ option – harms the representative nature of the Senate. That may be true, however, opposing Gorsuch is a mere statement, resulting in the loss of their filibuster option and, as a result of image-loss among Republicans, decreasing the chance of bipartisan efforts. Aforementioned would thus decrease the power of the Democrats significantly, allowing no representation of their voters whatsoever.