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Why it’s worth it for Dems to take a symbolic stand against Gorsuch

We are in an era where respect for mere norms has almost disappeared. The area of Supreme Court nominations was especially norm-bound, and now those norms are on life support.

Supreme Court nominee judge Neil Gorsuch testifying during his Senate Judiciary Committee confirmation hearing on March 22.
REUTERS/Jonathan Ernst

If I were a Democratic senator, I guess I would go ahead and filibuster the nomination of Judge Neil Gorsuch to fill the Scalia/Garland vacancy on the Supreme Court, knowing that if enough Dems do so to block a final confirmation vote the Republicans will “go nuclear” and change the filibuster rule (following a precedent set by the Democrats when they were in the majority) and confirm Gorsuch with a simple majority vote.

I also expect that Gorsuch, who is just 49, will, barring some unexpected health issue, spend the next 30 or 40 years voting the Republican Party line on the bench on most cases that have a clear party line. He won’t say that’s what he’s doing, and he may occasionally break ranks, but that will be the new normal.

That party line will prevail for the foreseeable future in most crucial cases, except where Chief Justice John Roberts or senior Justice Anthony Kennedy, or maybe even occasionally Gorsuch himself breaks ranks to vote with the Democratic nominees on the court, and that new normal will continue until future Supreme Court seats change hands.

(It’s possible to overstate, as I just did, the frequency of pure party-line voting, but it happens more and more frequently, especially on issues that have become heavily partisanized.)

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I expect liberals will pray for the health of the senior-most Dem appointees on the court, Justices Ruth Bader Ginsburg (age 84 and a cancer survivor) and Stephen Breyer (age 78), hoping they can stay on the court until the next Democratic presidency and then fill those seats with young liberals.

Conservatives will likewise hope that either Kennedy (age 80) or Clarence Thomas (a mere lad of 68) retires soon, while Republicans hold all the cards regarding their replacements (meaning a Republican president and a Republican Senate majority), so they can freshen up their SCOTUS team with more young justices.

I may be wrong about any of those things, but they mostly seem blitheringly obvious to me. Each of the predictions adds to the long list of relatively recent changes in the norms surrounding Supreme Court appointments (and also Senate rules, in the case of the filibuster).

We have entered a period of hyper-partisanship such as Washington has seldom seen. Our system is not really built for this, but (with plenty of exceptions such as the inability of the House Republicans to agree on a replacement for the Affordable Care Act, so far at least) we’ll soon see what new, lower limits on partisan political blood sport still exist, if any.

I have learned over recent years to carefully note (and have probably pontificated previously about) the hierarchy of laws and rules and norms that govern us. Many things that we were raised to believe were deeply embedded in the constitutional order have been demonstrated over recent years to be more myth than law, and it turns out that while laws can be enforced, myths lose their power once people stop believing in them.

We are in an era where respect for mere norms has almost disappeared. Under the old norms, when a president says something false, and it’s proven to be false, he revises what he said or at least stops telling the same falsehood. For the balance of the current incumbency, that’s over. Maybe it will come back later. But, going forward, when a mere norm gets in the way of something that one of the parties wants and has the vote to do, the norm will crumble and the votes will count.

The area of Supreme Court nominations was especially norm-bound, and now those norms are on life support. When I was a tadpole, Supreme Court justices and the nomination process for new ones were perceived as relatively above partisan politics. In 1932, conservative Republican President Herbert Hoover didn’t want to appoint liberal Democratic Judge Benjamin Cardozo to a Supreme Court vacancy, and he resisted mightily. But, just because Cardozo was understood by consensus to be the brightest legal mind in the country, Hoover had to relent. President Dwight Eisenhower appointed a liberal Democrat (William Brennan) in 1956 because Eisenhower, who had filled the previous two vacancies with conservative Republicans, was heading into re-election and didn’t want to be perceived as allowing partisanship or ideology to guide his Supreme Court choices.

That’s over.

By the same token, until recently a presidential candidate would never, ever say that, if elected, he would appoint justices who were sure to vote a certain way on a certain matter, such as to overturn Roe v. Wade (if they are Republicans) or to overturn Citizens United (if Democrats). Now they pretty much all make those kinds of commitments, and they probably couldn’t get nominated without finding some way to reassure the party base about such matters.

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I find it strange – and troubling for the health of our democracy — that such questions, which to me resemble policy questions far more than they resemble issues of fundamental constitutional rights, are now the purview of unelected officials with lifetime terms.

But everything I just wrote above is in the realm of norms, not laws, and certainly not clear constitutional provisions. The Constitution and the laws of the United States impose no obligation on presidential candidates to encourage or prohibit them from publicly declaring how they expect their Supreme Court appointees to vote. There used to be a norm against it. That’s over. 

The Constitution, which is the toughest lawbook to defy when its meaning is clear, says very little about the Supreme Court. Article III says there should be a Supreme Court – to hear “cases arising under this Constitution” and a few other specified areas. (It does not say, and I believe the framers did not intend to say, that the Supreme Court has the power to overrule the elected branches and strike down laws that have been enacted. Joseph Ellis, one of the leading current historians of the founding era, agrees.)

Article II gives the president the power to “nominate, and by and with the advice and consent of the Senate … judges of the Supreme Court.” It says nothing about how many justices should serve at a time (and the number has fluctuated from six to 10). It doesn’t even require that the nominees have law degrees.

And it says nothing about how many votes are required for the Senate to give its consent, nor does it indicate whether such nominations can be filibustered nor how many votes it takes to end a filibuster. Those answers are not in any real “law” at all, but in the book of Senate rules — which the Senate can and has changed, and sometimes they are just Senate traditions (aka norms).

In the beginning, there was no such thing as a filibuster, then it was created by accident and there was no official way to way to end one,  then came a rule that it took a two-thirds vote to shut off debate and force a vote, then in 1975 our own Walter Mondale led a successful effort to change it to 60 votes, where it have been ever since, except in those areas where the “nuclear option” has recently lowered the threshold for ending debate to 51, which includes the confirmation of most federal judges. When that last change was made, Supreme Court nominations were left at 60. But there’s little argument that, under the “nuclear option,” a majority of senators can lower it to 51 for Supreme Court appointments, and there’s little reason to believe the Republicans won’t do that.

So why did I say at the top that if I were a Democratic senator, I would filibuster Gorsuch anyway, even though it wouldn’t keep him off the bench?

Because of what the Republicans did with former President Obama’s nomination of Judge Merrick Garland. Gorsuch has a strong résumé, but Garland’s was even better. (He held the highest judicial position in the country other than the Supreme Court. He was universally respected and had significantly more experience than Gorsuch.)

The Repubs announced that they wouldn’t even hold a committee hearing on the Garland nomination because it was made during the last year of Obama’s term. They pretended there was some kind of well-established precedent for refusing to consider an appointment during the last year of a president’s term. (I’ve written about this before, here and here.) The “rule” they invoked was utter rubbish, and they couldn’t cite a single case of the Senate following such a rule. It wasn’t a constitutional provision, it wasn’t a law, it wasn’t a rule, it wasn’t a norm, it wasn’t even a past practice. They did it because they had the votes to do it and they hoped that a Republican might win the presidential election in 2016.

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And that happened.

If I were a Democratic senator, I couldn’t see letting that just go by. Some Republicans said at the time that, if necessary, if a Democrat won the presidential election, they might block a nomination for an entire four-year term. Well, it didn’t work out that way, and now they have Republican president and a Republican Senate majority (but not filibuster-proof) and it looks as if there is no way for the Dems to prevent this miscarriage of past practice from being crowned with success, with potentially gigantic real-world consequences.

The filibuster won’t do any good. So it’s really not important except as a way to protest what the Repubs did to Garland.

But, either way, we’re in a new world of results-oriented hardball where Supreme Court appointments are concerned, and now that the old rules and norms have been exposed as mere ciphers, they won’t be coming back. If it ever did, politics no longer stops at the courthouse door.