Government & Politics

Politics, Not Qualifications, Decide Gorsuch Nomination

Schumer's desperate behavior over the filibuster reveals hypocrisy.

James Shott · Apr. 4, 2017

Senate Democrats are doing the Stanky Legg Two-step in order to dance away from confirming a nominee to the U.S. Supreme Court. Why? He’s a federal judge provably as devoted to following the U.S. Constitution and the body of federal law as any nominee in many years. The Democrats' plan to filibuster Judge Neil Gorsuch is unprecedented for a simple reason: There’s no basis for it except partisanship.

The question now is, will Republicans go “nuclear” and end the filibuster?

Gorsuch, whose record on the bench of the Tenth Circuit Court of Appeals is as nearly perfect as one can hope to achieve, is precisely the type of judge the Founders had in mind when they wrote the Constitution. He’s a man in the mold of the late Antonin Scalia, whose vacancy he has been nominated to fill.

Testifying before the Senate Judiciary Committee, Gorsuch said his law clerks had compiled information about his 10 years on the bench of the Tenth Circuit Court, which covers about 20% of the U.S. He has participated in more than 2,700 appeals, 97% of those cases were decided unanimously, and he was in the majority 99% of the time. How much more mainstream can one be?

His record clearly identifies him as a mainstream appellate judge, as has the American Bar Association, not an ideologue, or someone who plays favorites. Nevertheless, an exercise designed for confirming a qualified person to sit on the nation’s highest court has devolved into a political war.

U.S. law is a system of rules that govern behavior. Rules and laws must be followed and not following laws has penalties. In the U.S. laws are not static; they can be amended or repealed, but they must be amended or repealed through a specific process. However, some people — primarily liberal Americans — believe that this process may be circumvented by the rulings of activist judges when laws get in the way of their inclinations.

Gorsuch’s adherence to the law is Democrats' primary objection to his nomination. Secondarily, it’s retribution for Republican refusal to even grant hearings to Barack Obama’s nominee, Judge Merrick Garland.

This, too, points to a Democrat anomaly. A principle relating to this situation arose in the Senate in 1992, when then-Senate Judiciary Chairman Joe Biden said that filling Supreme Court vacancies “that would occur in the full throes of an election year,” must be held to a different standard. Citing “a majority of his predecessors,” Biden said that the president, George H.W. Bush, should delay naming a replacement, which would de-politicize the nomination, at least for a while.

In March of last year, “in the full throes of an election year,” Barack Obama ignored the advice that Biden, then his vice president, had offered on the matter years before and nominated Judge Garland. Republican Senate Majority Leader Mitch McConnell, however, liked Biden’s theory, and would not schedule hearings for Garland.

Democrats want judges who decide legal issues on whether their decisions fit the passions of the moment or have their preferred impact on the people. It’s outcome-based judicial activism. Therefore Democrats disapprove of judges who follow the Constitution and the law.

Minority Leader Chuck Schumer is now leading a filibuster to block a vote to confirm the highly qualified and squeaky-clean Gorsuch as retribution for Garland.

Schumer spent 20 minutes on the Senate floor urging his fellow Democrats to oppose Trump’s nominee. Gorsuch, he said, “was unable to convince me he would be a mainstream justice who could rule free from the biases of politics and ideology.” And Gorsuch “is someone who almost instinctively favors the powerful over the weak, corporations over Americans,” Schumer said. “He declined to answer question after question with any substance,” he complained, referring to Gorsuch’s refusal to express his political beliefs or to prejudge issues that may come before the Court.

Others have equally irrelevant objections:

Sen. Kamala Harris: “As U.S. senators, we have an obligation to also examine a nominee’s legal approach and ask whether he or she considers the impact of those decisions on our society and the daily lives of our people.”

Sen. Patty Murray: “I cannot trust that President Trump is acting in the best interest of our country or our democracy and I cannot support moving forward with his choice for the Court.”

Virginia Democrat and former vice presidential candidate Sen. Tim Kaine opined, “After meeting with Judge Gorsuch and reviewing his testimony and past decisions, I’ve observed that he has repeatedly taken an activist approach to cases involving a woman’s right to make her own decisions about her health.” Kaine clearly does not understand the definition of judicial activism.

Senate Democrats reportedly have the votes in place to sustain a filibuster to prevent a confirmation vote. Unless…

Following the lead of former Democrat Majority Leader Harry Reid, Republicans can use the “nuclear option” to change Senate rules so as to allow a simple majority vote to confirm Gorsuch. Majority Leader McConnell has pledged that one way or another, Gorsuch will be confirmed this Friday. The question is whether McConnell has enough votes for even that. With moderates like Susan Collins and Lisa Murkowski on the loose, McConnell may not be able to carry through on his promise.

Schumer and Co. must figure it’s a win-win. Republicans either don’t have the votes for the nuclear option and Gorsuch is blocked, or the GOP forever bears the “blame” for nuking the filibuster. Beyond that, however, Democrats aren’t getting anything. Gorsuch replaces Scalia, keeping the previous balance on the court, and Democrats may not have the filibuster in the future when, say, Ruth Bader Ginsburg’s seat is at stake.

Perhaps if Ted Kennedy hadn’t character-assassinated Robert Bork, leading to highly ideological and personal Supreme Court confirmation battles, we wouldn’t be here today.

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