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

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

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.)

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.

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.

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.

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Comments (64)

  1. Submitted by Ron Gotzman on 03/30/2017 - 10:19 am.

    Politics as usual….

    So you were against the filibuster before you were for it?

  2. Submitted by lee wick on 03/30/2017 - 10:59 am.

    Harry Reid is Gone but Still Here

    The Dems have Harry Reid and his nuke to blame. It’s quite possible there will be four conservative justices place on the bench in the next four years.

    I also think it’s utter nonsense, Al’s and Amy’s no vote. I watched the hearings. Their decorum was off.

    • Submitted by Frank Phelan on 03/30/2017 - 11:19 am.

      To Suggest

      That Mitch McConnell would not do away with the filibuster for Gorsuch had Reid not eliminated it for lower federal court judges is naive, to say the least.

      As far as Al & Amy’s decorum during the hearings, it was much worse than their decorum during the Garland hearings. Oh wait, never mind.

  3. Submitted by Jon Austin on 03/30/2017 - 11:08 am.

    I tip the other way

    I follow your logic and come out on the other side of the decision. I would vote for cloture and might even vote for Gorsuch even though I’m – apparently – a “hyper-liberal” (according to a recent conversation) and I believe Mr. Trump is our most pressing threat to national security. Judge Gorsuch is a qualified jurist whose rulings and writings suggest is in the mainstream of judicial thought and that fits my interpretation of the “advice and consent” responsibilities of the Senate.

    Of the current members of the court, I would have voted for all of them except perhaps for Justice Thomas who had relatively skimpy credentials and who has contributed little to the Court except a reliably conservative vote.

    As far as original intent regarding the Supreme Court, at the risk of playing with fire wielded by better wizards than me, I disagree. Surely they meant for the principle of judicial review – as reflected in Marbury – to be inherent in the court. Otherwise, the “check and balance” functions of the judiciary seem woefully unbalanced and weak. Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…”

  4. Submitted by Neal Rovick on 03/30/2017 - 11:18 am.

    Get rid of the filibuster–it’s a paper tiger. Its greatest value is in the publicizing of breaking another norm in governing by the Republican party. It is clear that the filibuster will be gone in the next minor or major Republican issue or appointment that is not going to be be accepted by 60 Senators.

  5. Submitted by Pat Berg on 03/30/2017 - 11:38 am.

    I’ve been torn on this

    I’m angry about the Garland thing, too. And the memory of that is not going away any time soon.

    But the fact of the matter is that Gorsuch IS going to get in. He just is.

    So this isn’t really about THIS nomination as much as it is about the NEXT one. And about the next one, there are no guarantees. It may happen in the next four years, and then again it may not. Stranger things have happened.

    So I guess I think tipping the scales now towards invoking the nuclear option then guarantees it’s in place for the next nomination if it comes up in the next four years.

    But letting this one go through – no matter how much it galls – and preserving the possibility of filibuster against future need (and who knows what the political climate will call for at that time – after all, we all thought Obamacare was a done-deal-goner) is worth considering.

    But I fully realize that is not an argument that’s going to sway the base. And I guess that’s politics.

    Sigh.

    • Submitted by Sean Olsen on 03/30/2017 - 12:11 pm.

      No leverage

      If McConnell is willing to invoke the nuclear option to replace Scalia, he’s not going to hesitate for a moment to use it to replace Kennedy or one of the Democratic appointees. So there’s precisely zero leverage to be won by not using it on Gorsuch. May as well get the GOP on the record as being the ones to take that final step and work like heck to take back the Senate in 2018 (a long shot) and take back the Senate and the Presidency in 2020.

      • Submitted by Pat Berg on 03/30/2017 - 12:32 pm.

        But that’s the thing . . . .

        Unless you can read the future, there’s no way of knowing for a fact that there will be an opportunity for another nomination in the next four years. A high probability is not the same thing as a sure bet.

        So that’s why I lean towards feeling like it’s a shame to waste it now.

        And do you honestly think the GOP’s base gives a whit about whether McConnell is the one to invoke the nuclear option? Heck – they’re probably cheering him on!

        • Submitted by Sean Olsen on 03/30/2017 - 04:26 pm.

          I don’t understand what would be “wasted” by doing it now. What’s the point of holding on to something that has no power?

        • Submitted by RB Holbrook on 03/30/2017 - 05:09 pm.

          Wasted?

          I don’t see an attempt to block someone like Judge Gorsuch from sitting on the Supreme Court as a waste of effort. If nothing else, let’s allow the public to see what Trump really stands for, and whose agenda he wants to promote.

  6. Submitted by Connie Sullivan on 03/30/2017 - 11:50 am.

    Symbols matter. It’s been ages since the Senate’s “fillibuster” actually meant debate on an issue; all it means now is voting to bring a Supreme Court nominee up for a vote before the whole Senate. There’s no debate to “close” with cloture.

    But if the Democrats refuse to vote for bringing the nomination of Gorsuch before the whole Senate, which takes 60 votes at present, they put themselves on record as protesting his nomination. That is a valid political symbol, an important symbol: It says “No” to the whole GOP ways of running things in Congress. Especially the GOP “dissing” of Garland and the black Democratic President who nominated him with eleven months yet to go in his term.

    Nobody thinks that Gorsuch won’t get appointed, because the whole Congress is run by a GOP majority. But when the GOP is forced to vote him up with a sliver of a majority, that says something.

    Good for Franken for drawing out the heartless, inhumane moral, legal, and political rigidity that Gorsuch is capable of, with his decision that a truck driver should have let himself freeze to death rather than abandon his company’s trailer to drive the cab around for a while (after three hours in sub-zero temps) to warm up his legs. A worker should sacrifice his life for his company’s profits? Gorsuch sat there, silent, at Franken’s questioning on that ruling. Great prospect for Supreme Court.

    • Submitted by Pat Berg on 03/30/2017 - 12:46 pm.

      Judgement

      People forget that they’re called “judges” because they’re expected to exercise “judgement”, one definition of which is “the ability to make considered decisions or come to sensible conclusions.”

      There is absolutely nothing sensible in concluding that a man should allow himself to freeze to death simply because the literal definitions of the words said that that is what he must do or lose his job.

      Anyone can simply say “You have to do this because it says here you have to”. But that’s not exercising *judgement*.

      But the Republicans think it’s A-OK to place on the Supreme Court a man who is apparently entirely unable to exercise his own judgement when faced with a situation, the absurdity of which was very capably pointed out by Senator Franken.

      Heck – if all it takes for the job is the ability to say “Because it says so right here!” then where do I sign up?

  7. Submitted by Howard Salute on 03/30/2017 - 12:16 pm.

    Disappointing Logic

    A person somehow has to believe that “two wrongs make a right” to accept the argument to vote against Gorsuch in retribution for Garlund’s treatment.

    In a time when most of us are asking our elected officials to work together and to find some middle ground for the sake of the people, this suggested action keeps us going down the low road.

    Black disappoints with faulty logic.

    • Submitted by RB Holbrook on 03/30/2017 - 01:06 pm.

      Retribution?

      You’re assuming that the only reason to block–or to try to block–Judge Gorsuch’s nomination is retribution. Remember that he is a judge who has taken positions on reproductive rights, environmental protection, and workers’ rights that put him solidly on the right-hand side of the spectrum. He is not someone from the “middle ground.”

      It’s not just about scoring points. Ideology matters, too.

      • Submitted by Ilya Gutman on 03/31/2017 - 07:29 am.

        No point

        Since Democrats can’t in real life block Gorsuch, their actions are solely based on retribution… His ideology is moderate enough for some Democrats to support him, just like some Republicans supported Obama’s nominees

        • Submitted by Frank Phelan on 03/31/2017 - 12:11 pm.

          Do Tell

          Which R’s supported Garland? My memory is good, but it’s short.

          • Submitted by Ilya Gutman on 04/01/2017 - 10:14 am.

            Nine Republicans votes for Sotomayor and five for Kagan…

            • Submitted by Frank Phelan on 04/01/2017 - 05:35 pm.

              Sounds Like

              The R’s moved even farther from the center between those two and Garland. Which is saying a lot.

              • Submitted by Ilya Gutman on 04/01/2017 - 08:45 pm.

                An alternative

                Or the R’s figured out that the D’s had moved so much to the left that appointing another liberal judge would be a disaster… so they prevented it by legal means. Of course, it was just a Senate Majority Leader who prevented Garland’s debate, not all R’s… Now the D’s want revenge even though they know that they cannot prevent Gorsuch nomination… and even though quite a few Democrats would vote for him, their leader tells them not to dare…. On the other hand, I highly doubt that Democrats would be more receptive to Gorsuch if Garland had a hearing and were voted down… Plus, Trump, who nominated Gorsuch, has nothing to do with Garland’s treatment…

        • Submitted by RB Holbrook on 03/31/2017 - 12:58 pm.

          Moderate?

          Seriously? Have you even read anything he has written?

          If Judge Gorsuch is a “moderate,” I can’t imagine whom you would regard as “conservative.”

          • Submitted by Ilya Gutman on 04/01/2017 - 08:45 pm.

            What moderate means

            I have and when I said moderate, I meant moderately conservative. Sotomayor and Kagan are just liberal, not moderately liberal.

            • Submitted by RB Holbrook on 04/03/2017 - 02:44 pm.

              Moderately conservative?

              Seriously?

              If Judge Gorsuch is “moderately conservative,” I can’t imagine whom you would regard as “full-throated right-wing ideologue.”

              • Submitted by Ilya Gutman on 04/04/2017 - 12:30 pm.

                Please provide examples

                Will you please tell me which of his decisions tell you that he is “full-throated right-wing ideologue” which I guess you think he is? And can you also name a current Supreme Court Judge on the left who is not a “left-wing ideologue?”

                • Submitted by RB Holbrook on 04/05/2017 - 09:22 am.

                  Examples

                  First, the idea that there should be balance or unanimity on the Supreme Court has no support in history, jurisprudence, or reality. Tu quoque is also one of the most basic logical fallacies.

                  Second, look at Judge Gorsuch’s dissents:Compass Environmental v. Occupational Safety, 663 F.3d 1164 (10th Cir. 2011) (Judge Gorsuch disagreed with his colleagues on the weight of the evidence that had been presented below); Webb v. Thompson, 643 Fed.Appx. 718 (10th Cir. 2016) (arresting officers who caused a delay in a suspect’s hearing entitled to immunity for their actions); Ragab v. Howard, 841 F.3d 1134 (10th Cir. 2016) (conflicting language in arbitration clauses should still mean consumer was required to arbitrate dispute); etc.

                  • Submitted by Ilya Gutman on 04/07/2017 - 09:32 pm.

                    My response cannot go through

                    Mr. Holbrook, would you be willing to continue this nice discussion through the e-mail?

    • Submitted by Matt Haas on 03/30/2017 - 07:03 pm.

      How’s about

      We’re tired of folks who are apparently only able to interpret law as the demands of two-century dead politicians. Those that cannot recognize that the needs of a society of 350 million plus cannot be met by the whims of those for whom science and medicine might be considered witchcraft, and whose ideals, while lofty, are hardly holy writ. Each and every “constitutional originalist” is a fraud, as their foolish adherence limits the constitution to nothing more than the writings of dead men, and limits society to nothing more than the echo of a forgotten (or mis-remembered) past. They simply wish to hold society in place, a sot to their ideological bias, that they so stridently profess to be nonexistent.

      • Submitted by Ilya Gutman on 03/31/2017 - 03:54 pm.

        Communists wanted to destroy the old world and forget all outdated old laws because the mankind had moved forward and new ideas were necessary for progress… Unfortunately for them, the human nature hasn’t changed.

  8. Submitted by Andrew Kearney on 03/30/2017 - 12:28 pm.

    The Gorsuch vote is unconstitutional

    I appreciate the article and with a few exceptions the commentary. I would just add that I don’t believe anyone sworn to uphold the constitution can do anything other than fillibuster or vote no on Gorsuch. President Obama as the constitution dictates nominated a qualified nominee. The Senate in an act of omission that was unconstitutional, did not take up the nomination, did not provide advice and did not give or withhold consent. Properly the only remedy is for the Senate to take up a vote on Garland and dispose of it one way or the other. Until they do this the Democrats should uphold the constitution by voting No.

    The constitution is not just the words on the paper it is also the space between the words; the understanding among all of us of what Black calls the commonly understood norms. The spaces between the words is what binds the country together to make us self-governing. Anything else is primitive political chaos that could lead to civil war.

  9. Submitted by wayne moskowitz on 03/30/2017 - 01:57 pm.

    Eric’s right

    I agree with Eric. Game theory & evolutionary psychology teach that you should impose a cost when your opponent cheats. McConnell cheated by denying Garland a hearing. We need to defend American political norms. Opposing Gorsuch seems to me to be the ethical and right response.

  10. Submitted by Arthur Swenson on 03/30/2017 - 06:04 pm.

    Revenge

    I almost always agree with Eric’s positions. On the issue of the Judge Gorsuch nomination to the US Supreme Court, there is a strong pull toward avenging the treatment of Judge Garland by the “Party of No.”

    The problem is, however, that two wrongs cannot make a right, and for the Democrats to lower themselves to the level of juvenile retribution further debases governance at the Federal level. Someone has to be the adult in the room, and model the type of behavior that we have the right to expect from our legislators.

    Go ahead, consider Judge Gorsuch on his qualifications and record. Supreme Court nominees have been known to grow into the position, and often issue decisions that are surprising (or even alarming) to those who nominated them. I remember how sure people were, for example, that the Roberts Court would eviscerate the Affordable Care Act.

    If a future President is concerned enough about the philosophical bias of the Supreme Court, (S)he can always follow the example of FDR, and threaten to “pack the court” with additional nominees. If the Senate agrees, the Court can grow to 11,15 or more Justices.

  11. Submitted by Ray Schoch on 03/30/2017 - 08:13 pm.

    Emotionally

    …I’m with Eric and some of the angriest commenters.

    That said, I’m most persuaded by Pat Berg and Jon Austin, especially the latter. I’m not a fan of Mr. Gorsuch, but I think Austin is correct in asserting that Gorsuch’s rulings and writings put him in the mainstream of recent judicial thought, especially in regard to the SCOTUS. While I find that mainstream to be too often odious, and Gorsuch’s apparent “fit” into that mainstream equally odious, he seems to me qualified—if not as qualified as Merrick Garland—for the position for which he’s been nominated. In that context, Andrew Kearney’s argument seems to me especially well-stated.

    In the end, it’s Kearney’s view that I like the best, for what very little that’s worth. In other words, Democrats should vote “no,” or filibuster until either an up or down vote is taken on Merrick Garland, or the sleazy Mr. McConnell is able to secure both cloture and the nomination without the cooperation of Democrats. Yes, that hardens the political arteries in Congress just that much more, but I see little to be gained in the broader scheme of things by allowing the Republican bully in the room to get what he wants without so much as a verbal challenge. We all know that if the tables were turned, McConnell would—and did, with Garland—pull out every stop to object to the nomination. McConnell’s objections weren’t even on principle. It was simply a political move.

    Still one of the political parties has to act like a grown-up, and I want it to be the Democrats. We already have a sizable child in the Oval Office.

    • Submitted by Paul Brandon on 03/31/2017 - 08:13 pm.

      Good points

      Despite his obvious shortcomings, Gorsuch is highly qualified in comparison to many of Trump’s appointments.
      Beyond due symbolism, this is not a hill to die on.

  12. Submitted by Jon Kingstad on 03/30/2017 - 09:21 pm.

    Nuclear option

    The no vote on Gorsuch is the right thing to do whatever the GOP wants to do to try to circumvent it by this “nuclear option.” I read that Harry Reid said in 2005 that he thought the nuclear option was not valid. Apparently the Senate Parliamentarian at the time agreed with him.

    It’s time to clear this up once and for all now that the norms have so clearly been cast aside by the GOP. I don’t understand how the filibuster rule can be undone except by a vote of the same number of Senators that originally created it which I suppose is a 3/5 majority. (Maybe that 3/5 fraction gies a clue as to how that was selected in the first place also). In other words, I’m thinking maybe the GOP’s use of the filibuster to ramrod their man to the Supreme Court is not going to work.

    Ironically, it would seem to create a bit of a conundrum or a constitutional crisis or both for any “originalist” like Gorsuch because Article I, section 3 clearly says the Vice President shall have no vote except when they (the Senate) are equally divided. It seems that using a convoluted procedure to allow the Vice-President to opine that the filibuster is unconstitutional when the Senate is not equally divided is circumventing those words. It gives the Vice-President the equivalent of a vote when he quite clearly does not have it. By what logic or sophistry does one get around the obvious intent of the words?

  13. Submitted by Eric Black on 03/30/2017 - 10:09 pm.

    Thanks for all the good comments, not just in this thread but on so many threads under my scribbling. I appreciate you all. Just to clarify: to me the issue of whether or not to filibuster Gorsuch is the least of it, since, under the new norms, a filibuster will not be effective, and sooner or later that will be made official. And that will be fine too. What the Republicans did on Garland seems more outrageous, but it turns out there is no law or enforceable norm on the matter so that, too, becomes becomes part of the new normal going forward. It wouldn’t surprise me if that same tactic becomes the new normal. The real revenge for Garland, if that’s the way to think about it, will be some future instance when a Republican President needs a Dem-controlled to confirm one of his Supreme nominees and they decide to say no, let’s until after the next presidential election. 

  14. Submitted by Joe Musich on 03/30/2017 - 10:45 pm.

    To maintain …

    a shred of dignity the democrats must filibuster. To maintain a shred of collective decision making ther democrats must hold npback the dark.

  15. Submitted by Tom Anderson on 03/30/2017 - 11:02 pm.

    The best take is

    That the only possibility of a Justice breaking ranks is from the conservative side. Absolutely true and absolutely sad.

    Senate GOP did hose up by not simply going through the motions of a hearing, granting an up or down vote, voting Garland down, and then moving on. Saying the plan out loud was horrible for PR and provided the “retribution” argument that would not have existed had they just taken the aforementioned steps.

  16. Submitted by Joel Stegner on 03/31/2017 - 01:03 am.

    Garland

    His treatment was the end of all norms. Republicans lacked the courage to hold hearings, vote no and defend their reasoning, because they were lazy political hacks who kowtowed to the Majority Leader. That they expect the high road from Democrats after last year’s fiasco is ludicrous. And that doesn’t get to the issue that Trump may have worked with the Russians, a charge which if proven most Americans believe that he should be removed from office. What promises did Gorsuch make with Mr. Let’s Make a Deal to get the appointment? Maybe none, but that would not be Trump’s style.

    • Submitted by Ilya Gutman on 03/31/2017 - 03:55 pm.

      Maybe

      Wasn’t ending filibuster for all but Supreme Court judges the end of all norms? And what does Gorsuch nomination to do with the Russians?

  17. Submitted by Hiram Foster on 03/31/2017 - 05:45 am.

    Balances

    Whenever we talk about checks and balances, it seems to me that we are talking more often about checks than we are balances. I think right now it’s interesting to pay more attention to balance side of the phrase.

    In the last few years, we saw the Supreme Court engage very deeply in a legislative process. I know that “judicial legislation” is a pejorative catch phrase tossed mostly at rulings that we don’t like, but what’s been happening recently is different. With the health care decisions the Supreme Court involved itself very deeply in legislative policy making, something for which they are supported in by neither the constitution or an adequate staff. I believe that the court’s willingness to legislate in this manner changes the balance in it’s relationship with the other two branches, particularly with the legislative branch whose constitutional function the court has been pre-empting. Assuming I am right about that, it’s entirely reasonable for the legislative branch to push back by demanding increasing accountability from among other things, nominees to the Supreme Court.

    If Judge Gorsuch is going to make health care policy in his thirty years on the bench, I want to know now what it is. If he wants to legislate, I want him to do what legislators do, consult with and be available to his constituents, not just the voters but also Congress and particularly the senators whose job it is to confirm members of the Supreme Court.,

  18. Submitted by Ray J Wallin on 03/31/2017 - 06:57 am.

    Judges Vote?

    The author is crossing a line when he writes that a judge, much less a Supreme Court judge, will be ‘voting’ the Republican Party line. Then, saying Gorsuch will ‘break ranks’ assumes he is a puppet of the party. Judges ‘vote’ on election day. They don’t ‘vote’ in the courtroom and the statement is disrespectful.

    People tend to write about the Supreme Court as if it lives in a vacuum, as if, when they strike down or affirm a law, there is no reaction from the populace. But there are reactions, and having a slightly left or right Supreme Court is often less of an issue than the laws that get passed because of a law being struck down, or a presidential order being upheld.

    The Supreme Court decides on the gray, the area in-between. It is not wild, does not ‘vote’ the party line, and does not strike down laws that are firmly embedded in our constitution.

  19. Submitted by Ilya Gutman on 03/31/2017 - 07:30 am.

    What’s good for the country…

    I guess politicians are now acting not on the basis of what’s good for the country but on the desire of revenge… and Mr. Black unfortunately supports this approach. Sure, a lot of norms are out of the windows (including, as Mr. Black noted, most of the filibuster which was done by the Democrats) but substituting revenge for sound judgment and country’s interests is the worst thing to do. I am sure people would say that Republicans did the same with Garland but it is not correct: they just used a legal way to actually prevent Garland from becoming a Supreme Court Judge which, in their minds, would be bad for the country. Democrats now, on the other hand, do not have a way to prevent Gorsuch from becoming a Supreme Court Judge and, therefore, their actions are totally different.

    “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.” “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.” All these examples show Republicans appointing liberal judges or conservative judges appointed by Republican presidents voting along with liberal judges. Are there any examples of the opposite? And if not, why?

    Constitution “doesn’t even require that the nominees have law degrees.” Good, so maybe the judges should not have a law degree but just be smart enough to understand what their law clerks, who would have that degree, would tell them… and then judge based on reason. King Solomon didn’t have a law degree…

    Gorsuch and “a man who had to freeze to death” case. People here (and obviously, Franken, who is just a comedian after all) don’t understand that moral/right and lawful are not the same things and, as a judge, Gorsuch was dealing with the legal aspect only…

    • Submitted by Frank Phelan on 03/31/2017 - 12:10 pm.

      I Really Get A Kick

      Out of the idea that, while Mitch McConnell did not feel bound by norms or precedent for Garland, Schumer should agree to those norms now. And I’ll bet the Vikes can get the Packers to only field 9 players on defense next fall too.

      • Submitted by RB Holbrook on 03/31/2017 - 01:00 pm.

        For that Matter . . .

        Mitch McConnell did not even feel bound by his own earlier writings on the subject of judicial confirmations.

      • Submitted by Ilya Gutman on 03/31/2017 - 03:56 pm.

        Please re-read my post. It is not about the norms but about the difference between finding the ways to achieve the possible and being a bitter loser and seeking revenge when nothing can be done to achieve the actual goal.

  20. Submitted by joe smith on 03/31/2017 - 08:28 am.

    I suggest that the Dems win some elections.

    Before you go ballistic with the Hillary had more votes, I am talking seats in State houses, Senate, House in DC and some Governorships. I remember the liberals rejoicing in Obama’s “elections have consequences”, now I don’t see any rejoicing. It was great when Dems changed the rules to help them (filibuster and simple majority for appointees ) now those same rules are viewed as bad. A week ago Dems were touting the ACA as great for America, now that is the law of the land and they own it, they are begging to fix the multiple issues.

    Hard to take all of that seriously because it changes so quickly from good to bad depending on who is in charge!

    • Submitted by RB Holbrook on 03/31/2017 - 01:04 pm.

      Consequences

      The Constitution has consequences, too. There is nothing that says “advise and consent” means “vote automatically for the nominee because the President won the election.”

      “It was great when Dems changed the rules to help them (filibuster and simple majority for appointees ) now those same rules are viewed as bad.” Do you even know how the rules were changed? The filibuster was eliminated for judicial appointments other than the Supreme Court. It was preserved for SCOTUS nominees and most legislation.

      “A week ago Dems were touting the ACA as great for America, now that is the law of the land and they own it, they are begging to fix the multiple issues.” The “begging to fix” has been going on for a long time. Trumpcare was not “fixing” issues, it was payback for Barack Obama having been President and securing the passage of major legislation (did the Republicans really want to “own” Trumpcare?).

      • Submitted by joe smith on 04/02/2017 - 09:50 am.

        RB, do you mean when Harry Ried

        changed the filibuster rules to get to a simple majority for Obama appointees is ok, but to use the same tactic for a Trump appointee to the Supreme Court is wrong? Again, as I said , the hypocricy is hard to take seriously. I suggest a change in platform that agrees with regular Americans, win a few seats back, maybe win a Governorship and help put folks back to work then complain about the GOP using Dems tactics.

        • Submitted by RB Holbrook on 04/03/2017 - 09:27 am.

          Hypocrisy?

          I remember how the Republicans squealed with indignation when the rule was changed. I also remember when and why it was changed: 2013, after the Republicans had staged close to 500 filibusters during President Obama’s first term. Do you remember that part?

          Do you remember how the Republicans blocked confirmation of virtually every judicial appointment made by President Obama? Did you ever take the time to read a young Mitch McConnell’s thoughts on the obligation of the Senate to confirm a President’s judicial nominees?

          Do you remember the part where Senator McConnell bragged about party discipline that kept wavering Republicans from working with Democrats? Or when he said that changing the rules on the filibuster “will be utilized again and again by future majorities – and it will make the meaningful consensus-building that has served our nation so well a relic of the past.” Do you remember that?

          I’m an absolutist about free speech, but Republicans should be banned from using the word “hypocrisy” except in the sanctity of the confessional.

          • Submitted by joe smith on 04/03/2017 - 03:24 pm.

            I also remember the liberals

            howling like a scalded dog about the very things they are doing now to Trump when being done to Obama! Then it was bad, now that same behavior is good because you oppose Trump. Can’t have it both ways, kinda the description of hypocrisy, don’t you think?

            • Submitted by RB Holbrook on 04/04/2017 - 09:27 am.

              For Example?

              “I also remember the liberals howling like a scalded dog about the very things they are doing now to Trump when being done to Obama!” Like the continual campaign questioning his constitutional eligibility to be President? The meetings at which Democrats vowed to do anything to undermine his presidency? Do you mean those things?

              Or do you mean attempts to investigate credible claims of wrongdoing? Perhaps you mean the logical extension of the Republican efforts at politicizing the judiciary (for the record: Republicans have filibustered more judicial appointments than Democrats)?

              The “very description of hypocrisy” is the Republican indignation at Democrats in Congress. It includes the ease with which the pieties of the last 8 years are so blithely discarded, without any explanation or concern.

              That’s just the leadership. The willingness of the rank and file Republican voter to defend and accept that kind of behavior is moral blindness.

  21. Submitted by Roy Everson on 03/31/2017 - 08:42 am.

    First let the Russian scandal unfold

    It’s not hard to envision a scenario where over the next few months more and more Americans come to realize that enough potential Clinton voters in razor-thin states were influenced by Russian-fed disinformation campaigns — fake news and trolls — to tilt the election to Trump. Slowing down the life-time appointments of hard-right nominees will be considered a prudent reaction, not a partisan food fight.

    • Submitted by Ilya Gutman on 03/31/2017 - 03:57 pm.

      Please explain

      What difference does it make if it is a teenager in the basement or the Russians who make the fake news? Publishing fake news is legal, I believe.

      • Submitted by Paul Brandon on 03/31/2017 - 08:26 pm.

        Publishing

        ‘fake news’ is legal.
        Interfering in the elections of another sovereign nation is not, at least according to international law.

        • Submitted by Ilya Gutman on 04/01/2017 - 10:17 am.

          What is the difference

          So it will make a difference if that teenager is sitting in the basement in Kansas or in Moscow? And would Putin’s saying that he likes Trump and hates Clinton considered interference? Plenty of governments made clear that they would prefer Clinton, just like before they made clear that they would prefer Obama… Direct interference with voting, such as intimidating voters or tempering voting machines, is definitely illegal but there is zero evidence that this had happened.

  22. Submitted by Jon Kingstad on 03/31/2017 - 09:55 pm.

    What’s at stake

    Eric has pretty well laid out what’s at stake in his piece above: “overturn Roe v. Wade (if they are Republicans) or to overturn Citizens United (if Democrats).”

    Let’s be clear about this: I read Eric’s column as being about the appointment of a Supreme Court Justice becoming a battleground for “ideological forces” to amend the Constitution by changing the ideological composition of the Supreme Court through the political process rather than through the mechanisms set forth in the Constitution itself. This might be more clear cut if some decisions were less a result of apparent ideological tilt, like the “Citizen’s United” case decided by a Court which was fortified by the appointment of a Chief Justice by a President who was elected by the ideologically divided Supreme Court in Bush v. Gore.

    I would argue that Roe v. Wade is different, ideologically speaking, for several reasons. First, it was decided by a Court already tilted right by Nixon appointees. It was decided 7-2 and even written by a Nixon appointee, Justice Blackmun, a “conservative” at the time, who today is burned in effigy by the ideological opponents of liberty embodied in that principled decision. Which raises the second point about being principled.

    Roe v. Wade was a decidedly principled decision being in the “substantive due process” tradition but limited by the Court’s 1937 decision overruling “liberty of contract” and “substantive due process” except where they touched upon “fundamental liberties”, like marriage and reproduction. This has become shorthanded as the right of privacy, one of the “penumbral rights” guaranteed in the 1st, 4th and 5th Amendments, as well as the 9th, which the Court, on a principled basis, allowed to be expanded over time, as needed by the results of experience.

    It is over where these rights of privacy, and, because of the unfortunate decisions in Buckley v. Valeo and Citizens United, the First Amendment freedom of speech, that the ideological battle lines have been drawn. These unwritten ideological battle lines have increasingly defined the politics over the past 40 years as well. Gorsuch knows he is being advanced as a soldier in this ideological war which is the same war and unspoken reasons the GOP refused to even allow Merrick Garland a hearing. Merrick Garland and former Pres. Obama knew this too. Quite a large number of Americans seem to have accepted the idea that just as laws can be repealed or rules set aside because of a majority vote, they can also vote to have Supreme Court decisions which have defined the meaning of the Constitution and guaranteed persons fundamental liberties to be set aside by simply electing a President or Senator who believes such fundamental right can be taken away by replacing a member of the Supreme Court to “overrule” the offending decision.

    I won’t deny that I am not guilty of that thinking myself. I think Citizens United is one decision that a change in the Court would help overturn. I’m biased that way in my thinking that somehow human lives and aspirations count more than whether money really is equal to free speech. But I also believe it’s reasonable and feasible to repeal Citizens United by Constitutional Amendment through the Constitutionally prescribed methods. Those who seek to overturn Roe v.Wade know they have no hope of amending the Constitution to equate “person” with a foetus. That’s what this is all about and why I think opposition to Gorsuch and any other person proposed by an ideologically motivated President, like President Trump, needs to be resisted and opposed by every legal means.

    • Submitted by Matt Haas on 04/01/2017 - 08:42 pm.

      There will never

      Be a federal constitutional amendment passed in our lifetime. The bar is simply too high and we as a society, too fractured. This fact is what makes frauds of “originalists”, were such amendements a possibility, in the real world, I might give their worldview more thought. As they’re not, it makes the “originalist” position one of a society “set in stone”, unchanging and unadaptable to new realities. What they seek to accomplish is no more than to ossify society in their image.

    • Submitted by Ilya Gutman on 04/02/2017 - 10:38 am.

      An idea

      To reduce politicizing the Supreme Court, which I would guess most people don’t like, is it possible to invalidate all 5 to 4 decisions and send all those back to Congress? After all, 5 to 4 means that Constitution is not clear and decision is most likely political…

      • Submitted by Hiram Foster on 04/06/2017 - 12:30 pm.

        Politics

        About the only thing that can reduce politics on the Supreme Court is for justices to use more restraint. But that isn’t the trend for a number of reasons. To begin with, that would be just too boring. We have all these guys and gals on the court who have been told all their lives that they possessed of wonderful minds and then to ask them to sit on a bench for the last forty years of their lives and do nothing just isn’t going to work out. They will inevitably want to share the gift of their intellect with the nation.

        It is also the case that the selection of Supreme Court nominees has become an intensely political process. Candidates literally spend their whole lives building a resume that can withstand a senate hearing. It colors everything they do or say. Unlike ordinary law students or lawyers, they can’t express views. They can’t write papers. Throughout their professional lives they must avoid, as Judge Gorsuch succinctly put it, “tipping their hand”. For those who finally make it to the Court, the relief of finally being able to live a normal intellectual life must be exquisite.

        • Submitted by Ilya Gutman on 04/07/2017 - 07:41 am.

          Everything you said is true… but I believe the Constitution does not say how many Justices we are supposed to have and how they are supposed to make a decision. I don’t know who can make it happen but I would think a president or Congress can make all 5 to 4 decisions invalid.

  23. Submitted by Hiram Foster on 04/01/2017 - 09:18 am.

    It is not wild, does not ‘vote’ the party line, and does not strike down laws that are firmly embedded in our constitution.

    My sense is that the Supreme Court has gotten very wild indeed. Deciding the 2000 election was very wild, and what was wilder still was their effort to say that their decision didn’t have precedential value. To my way of thinking, involving itself so deeply and extensively in health care policy was an extremely wild choice from our justices. Surely the founders gathered in Philadelphia never dreamed that one say so many of us would be gathered on the front steps of a Supreme Court building waiting to learn from the whether our health insurance would be cancelled.

    A lot of what we see in the Supreme Court is set design. The marble, the columns, the robed justices all aligned in a row are all created a certain very superficial set of messages. Among other things, they are designed to create an impression in our mind that what they do isn’t “political”, that it’s based on some idea that floats somewhere above the court, and below God. Well, it ain’t necessarily so. The justices are political creatures just like the rest of us, only much more insulated from the politics of the day, and that quite often is not a good thing.

    • Submitted by Jon Kingstad on 04/01/2017 - 08:32 pm.

      Yes

      But at the same time, it’s essential to maintain stability and order to recognize some ultimate authority to whom appeals will inevitably arise. There is a need for finality for conclusiveness in a temporal sense. The judiciary and the Supreme Court provides that.

      The thing is, that quite a lot of legislation includes language like “”just and reasonable” which assumes that the courts, if not the Supreme Court, will determine what that is supposed to mean in a particular set of circumstances. In too many instances, that the Supreme Court determines is a final result becomes the limitation, and not a sign pointing in the “just and reasonable” direction. The Constitution was obviously written to be interpreted to circumstances as they developed in the future, not to create a straight-jacket on “the people” creating future government to deal with these circumstances.

  24. Submitted by Hiram Foster on 04/02/2017 - 07:47 am.

    , it’s essential to maintain stability and order to recognize some ultimate authority to whom appeals will inevitably arise.

    I think we can do that by voting more responsibility. The problem today is the court isn’t maintaining stability and order, it is disrupting the processes of government, and that has both short an long term dangers.

    I am a Democrat, and one of the things I believe in is universal health care. It’s a debatable issue, and many good and decent people disagree with me on it, often making very good arguments. So we now that we have a policy dispute, the question is, how should it be resolved? Who should be the “ultimate authority”? Flawed as they are, I think policy issues are for the legislative and judicial branch to decide. Believer as I am in democratic values, I am content to leave legislative authority to the people, where in it’s very first words the constitution placed it.

    I have no problem with courts interpreting legislation, it’s the making of it I have an issue with.

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