This Thursday, Senate Minority Leader Chuck Schumer announced that he planned filibuster the nomination of Judge Neil Gorsuch to the Supreme Court. Said Senator Schumer, “After careful deliberation I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court.” After careful deliberation indeed. It is hard to imagine a scenario in which Mr. Schumer was not going to attempt to filibuster the nomination of Judge Gorsuch. After all, there is a veritable liberal grab-bag of reasons to vote against even a judge as well qualified as Judge Gorsuch. In truth, the Democrats are beginning to make a mockery of themselves, stumbling over to provide reasons to make a principled stand against Judge Gorsuch. There is certainly a time to make principled stands, but when there are so many to be made even in the first two months of the Trump presidency, this hill is a particularly dangerous one to die on.
To begin, a reason many Senate Democrats and spokespeople have given as a reason to block Gorsuch’s nomination is mere retaliation. The idea that the vacant seat on the Supreme Court is somehow Merrick Garland’s to sit in has morphed into a weak Democratic talking point. While it is certainly disappointing for liberals across the country to be denied an opportunity to appoint one of their own to the bench, it is astounding that Democrats view the seat as “theirs to fill.” The blocking of Presidential nominations close to the end of a term is relatively common, though not as much for Supreme Court nominations simply because there are not many of them. That said, Democrats, including Joe Biden and Barack Obama, just twenty years ago advocated postponing the nominations of judges in election seasons. Now, the purpose of this is not to re-litigate the issue, but to point out a fundamental flaw in the consideration and nomination process of Supreme Court Justices that Democrats are particularly susceptible to – politicization.
Before crucifying the author of this article, note that Republicans are not immune to this phenomenon either, only that Democrats have been far more susceptible to the politicization of the bench for some time now. As was just discussed, liberals in and out of government consider the vacant seat to belong to a liberal judge, as it was made vacant during the tenure of a Democratic President. However, judges do not come with an (R) or a (D) affixed to their name. This is quite important to note. Even if Democrats did not get to nominate their preferred justice, the filibuster of a perfectly good candidate risks a runaway mine car of deeply politicized judicial nomination fights of any justice for decades to come. There is a reason that the judicial branch is not home to political parties. If justices are to be confirmed or declined based on their political preference, they might as well be elected positions.
If unconvinced as of yet, note Senator Feinstein’s questioning of Judge Gorsuch during the judicial hearings. She asked of Judge Gorsuch, “Do you view Roe [vs. Wade] as having super-precedent?” It is well known that Democrats have a litmus test that is applied to potential nominations to the bench, including how they would rule on certain cases of interest. It is particularly interesting that Senator Feinstein wishes Judge Gorsuch to believe that Roe is precedent that cannot be undone while she and other Democrats have been railing against other “precedents” for years and years. Citizens United and Heller are recent examples of this propensity to pick and choose which precedents Democrats want their justices to overturn. This is entirely outcomes-based reasoning, a fact which is made clear by attacks on Gorsuch due to perceived misallocations of justice in cases where corporations won or other minorities lost. This is not how the judicial system works, nor should it be. This application of certain values to how the law is read is dangerous, and Democrats should be very careful in using this line of reasoning.
Additionally, there are practical reasons for Democrats not to make such a ruckus over Gorsuch. After all, what happens when a justice they like, such as Ruth Bader Ginsberg, retires? They will have very little ammunition, only to make the exact same stink that they have raised over Judge Gorsuch. However, even though it is well-recognized that some justices tend to be more liberal or more conservative on the Supreme Court, the Democrats are chancing an open battle to get political appointees to the bench – something which nobody should want in their judges. Especially when the Democratic judicial philosophy is becoming so blatantly political, this nomination battle should concern American citizens, and even liberal legal thinkers.