One of President Trump’s first and most consequential moves in his first month of office was the nomination of Neil Gorsuch to the Supreme court. Not so much in response to the nomination but rather as a part their hardline against the Trump administration’s policies, Senate Democrats are promising a tough battle over Gorsuch. In response to this, Trump has directed Senate majority Leader Mitch Mcconnell to “go nuclear”, meaning the lowering the minimum number of votes required to put a nominee on the bench from 60 votes a simple majority of 51. Such a rules change threatens the foundation the hallowed chamber of the U.S. Senate and needs to be avoided at all costs.
Jeff Merkley of Oregon has already stated that he will filibuster any nominee not named Merrick Garland, saying that should Gorsuch be confirmed it would a “stolen seat”. Although Senate republican’s treatment of Merrick Garland was indefensible, it worked. Garland is a centrist who is widely respected by both Democrats and Republicans. The Republican opposition to Garland was based on Mcconnell’s citation of the “Biden Rule”, referring to a speech then senator Biden gave on the floor of the Senate in 1992 where he urged President George H.W. Bush not to nominate anyone to the bench should a seat become available (none did). “If a supreme court justice resigns tomorrow or within the next several weeks… “President Bush should consider following the practice of a majority of his predecessors and not name a nominee until after the november election is completed” said Senator Biden. That speech was given on June 25th, 1992, just three weeks prior to the Democratic convention. Merrick Garland, However, was nominated on March 16th, far before either party had even chosen their nominee.
Since the end of the Second World War, there have been thirty six nominees to the United Supreme court. Twenty eight of them have received the sixty votes necessary to earn on a seat on the bench. All of eight of those who did not were marred by controversy with the exception of Garland. The most accurate comparison there is to our current situation would be Robert Bork’s nomination. Although his involvement in the watergate scandal was a part of the Democratic opposition, Senate Democrats, who at the time had a 54-46 majority, mainly feared his strict originalist view of the constitution. Bork and Gorsuch have similar legal mindsets, but without the numbers or any scandal Democrats have little to no hope of keeping Gorsuch off the bench.
Admittedly, Chuck Schumer and his colleagues are in a precarious position. Their liberal base is demanding they stand up to Trump at every turn, but their 2018 map requires that they find areas to compromise. One of these areas must be Gorsuch’s nomination and thus integrity of the Senate. The Senate was designed to be the saucer that cools the tea. Since the new administration has taken office, a good amount of cordiality has gone out the window. Losing the 60 vote threshold for Supreme Court Nominees would even further divide an already split senate. I would hope to see Mitch Mcconnell reverse Harry Reid’s rules change which got rid of the 60 vote minimum for all presidential nominees, a move which will not find success long term.
It is important to remember that Gorsuch would not shift the balance of the court. In fact he would be a near exact replacement of Scalia in terms of legal theory. It is also important to remember that Justices Beyer, Kennedy and Ginsburg are all into their late 70s and early 80s. Should one of their seats become open, the left has far more to lose than they do with Scalia’s. Why put all your cards on the table now? This could lead to the court quickly shifting to the right.
Mcconnell’s move to obstruct Garland was unprecedented, controversial and overreach of power. But at the end of the day, he played politics and won. As Democrats try and return the favor, I ask them to remember that an eye for eye makes the whole world blind. Neil Gorsuch is a brilliant jurist, a talented legal writer and deserves to be on the Supreme Court.