Tuesday, January 31, 2017

Neil Gorsuch and the Shadow of the Merrick Garland Nomination

With Senate Democrats vowing to filibuster the Supreme Court nomination of Neil Gorsuch, there will be tons of commentary about how the shoe is now on the other foot. The political theater has already been comical. However, what I doubt most people will notice is that from a Constitutional standpoint, the case of Neil Gorsuch is importantly different from the case of Merrick Garland.

The case of Merrick Garland was a conflict between two different branches of government. The President nominated a Supreme Court justice, and the leadership of the Senate defied the President by refusing to vote on him—even to reject him. That was a conflict between the Executive and Legislative branches of government.

What's happening with Neil Gorsuch is that internal divisions within the Senate are preventing the majority party from working its will on the body as a whole. This is a Senate power struggle.

To underscore this difference, remember that all last year, John Yoo and others were stepping up to defend Mitch McConnell from charges that he was acting unconstitutionally. By contrast, I think nobody will be out there defending Chuck Schumer from such charges—because his actions don't raise the same constitutional questions.

It's true that filibustering a Supreme Court nominee is unprecedented. It's also true that the Republicans broke vastly more ground last year in the destruction of governing norms.


Some are arguing that Gorsuch will be confirmed sooner or later, and so the Democrats should make it happen the hard way by filibustering and forcing McConnell to end the filibuster for Supreme Court appointments. I don't know what the Senate Democrats ought to do here, strategically or on principle. In my previous post, I argued that Garland deserved a vote because he was qualified for the job. I still think that argument was right. Gorsuch, too, is plainly qualified. It sounds like a QED—give Gorsuch a vote—except I keep getting held up by one thing: the only reason Gorsuch was nominated at all is that the Senate Republicans had kept his seat open through an indefensible maneuver. This context might justify the Democrats working to keep the court at eight members, since to do otherwise would be to reward the bad-faith actions of the Senate during the Garland nomination.

It's like if a lunchroom bully steals my chocolate-chip cookie and shoves his own oatmeal cookie toward me. Should I say, "Well, I guess oatmeal is fine," and eat it, or should I say, "That was my goddamned chocolate-chip cookie, and you're going to pay for taking it"?

This is what it looks like when norms get broken.


On the substance of the pick, I would have preferred Hardiman, based only on what I know of his life trajectory. But I never thought Trump would appoint such an 'unreliable' character anyway, and considering that it could have been Pryor (background here), I'm glad to see that it was Gorsuch.

Here is a profile of Gorsuch from scotusblog. Here are four cases Gorsuch decided. And here are notes on Gorsuch's jurisprudence from the libertarian site Reason.com.

Given the concerns I expressed about Trump after his election—concerns that have only escalated since then—what I most want out of the next Supreme Court justice is a person with courage to beat back executive power and stand up for the liberties guaranteed to us by the Constitution. Gorsuch might or might not be that person. On the plus side, he has robustly defended Fourth Amendment freedoms, and he has argued that the judiciary currently defers too much to Executive Branch rule-making. On the other hand, he has a narrow view of the 14th Amendment, and due process has already been an issue in the Trump administration. Depending on how the political circus in the Senate plays out, I'll be looking to SCOTUSblog, as well as center/libertarian pundits like Conor Friedersdorf, for substance reporting and analysis on the nomination.

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