Replacing Justice Scalia with, Well, Justice Scalia

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Judge Neil Gorsuch isn’t Justice Antonin Scalia—but he’s not that far off either. (Photo Credit: Drew Angerer/Getty Images)

On the eve of the start of Black History Month, President Donald Trump didn’t disappoint his conservative fans or white supremacist supporters when he announced his nomination of silver-haired white dude Neil Gorsuch to fill the vacancy in the Supreme Court left when Justice Antonin Scalia left this Earth and departed for that big courthouse in the sky. Gorsuch, despite being the youngest SCOTUS nominee in a quarter of a century, has the pedigree of a Supreme Court Justice. He’s studied at Columbia, Harvard, Oxford—not a shabby hand, eh?—and in terms of his professional career, he’s been a clerk for a United States Court of Appeals judge and two Supreme Court Justices (Byron White and Anthony Kennedy), worked in a D.C. law firm, was principal deputy to Associate Attorney General Robert McCallum at the DOJ, spent time as a Thomson Visiting Professor at the University of Colorado Law School, and has served in his current role as a judge on the U.S. Court of Appeals for the Tenth Circuit out of his duty station in Denver, Colorado.

In other words, Judge Gorsuch is, unlike a number of Trump’s picks for his Cabinet, eminently qualified for the position for which he has been tapped, and for that, I respect the man. Do I think he should be confirmed as the next Supreme Court Justice, however? In a word, no. It’s nothing personal. I mean, heck, I didn’t know who the guy was until Pres. Trump’s prime-time announcement. Regardless, as I’m sure a number of key Democrats do, I have concerns about his priorities as a jurist and whether or not he would let his political and personal/spiritual ideologies interfere with his interpretation of the Constitution as a member of SCOTUS. Accordingly, I feel the Dems should take their time and do their due diligence before rubber-stamping Neil Gorsuch into service on the highest court in the country. After all, and if nothing else, it’s only fair.

On that last note, let’s take a few steps back and consider the current political climate in which we’re operating. In a vacuum, given his extensive experience, Gorsuch might not be considered a terrible pick, or at the very least, Democrats might have been more willing to work with the Trump administration and Republicans on moving along the confirmation process at a brisker pace. With Pres. Trump in the midst of signing a slew of grotesque executive orders to start his tenure in the Oval Office, however, and in light of the GOP’s obstruction of the Democrats’ own pick to fill Scalia’s vacant seat in the Supreme Court in the remaining months of President Barack Obama’s run as Commander-in-Chief, a measure of resistance on the Dems’ part might not only be advisable, but warranted.

Antonin Scalia died on February 13, 2016, and Obama officially nominated Merrick Garland to fill Scalia’s vacancy on March 16, 2016. The move on President Obama’s part to pick Garland, in addition to selecting someone highly experienced in his own right, was intended to force the hand of Republicans in the Senate. Would GOP lawmakers confirm Merrick Garland and resign to having a Supreme Court Justice many of them admired, but wasn’t as conservative as the more vocal factions within their ranks would have liked, or would they be a dick about things and refuse to hear Garland on principle that he was Obama’s choice and therefore had to be neutralized? Um, I think you know where this is going. Senate Majority Leader Mitch McConnell and the Republicans chose to be a dick about things. No hearings. No votes. Nothing. Essentially, they refused to do their jobs, claiming they lacked sufficient time to process Garland’s nomination and that the incoming President should decide who fills the vacant SCOTUS seat—even though they realistically had plenty of time to respond to Merrick Garland’s bid, and there was no standard or tradition which prevented a President of the United States from nominating someone to fill a sudden vacancy in his or her final year in office. Yup, Senate Republicans were being huge dicks.

Now, of course, the shoe is on the other proverbial foot, with of course the difference being that the Republicans had a majority in the Senate then and do now, which explains why they’ve been so keen to try to ram-rod President Trump’s Cabinet picks through the confirmation process. Not only do Republican leaders seek this treatment with Neil Gorsuch, however, but to an extent, they seem to expect it. The aforementioned Mitch McConnell had this to say about what he hopes to see from his Democratic Party counterparts:

In the coming days, I hope and expect that all Senate colleagues will give him fair consideration just as we did for the nominees of newly-elected presidents Clinton and Obama. This is a judge who is known for deciding cases based on how the law is actually written, even when it leads to results that conflict with his own political beliefs. He understands that his role as a judge is to interpret the law, not his own viewpoint.

Well, Sen. McConnell, you certainly talk a good game. Indeed, McConnell is not the only person to speak highly to Gorsuch’s credentials or his education, and Trump’s nominee has been known to diverge from his conservative principles when it suits him. Still, this blanket praise for Judge Gorsuch seems to be what we should anticipate from our federal jurists at somewhat of a minimum. Deciding cases based on how the law is actually written, interpreting the law and not one’s own viewpoint—these, one might argue, are important ethical standards for any judge. That is, Neil Gorsuch shouldn’t be assumed to be or propped up to be superior to other judges just by virtue of remaining free from bias. By this token, we should ask nothing less of the man, especially if he is to take up residency on the Supreme Court.

As for the timing of the SCOTUS nomination, Mitch McConnell conveniently leaves out what happened not at the onset of Barack Obama’s tenure, but in its twilight: that of the refusal to even dignify Merrick Garland’s nomination with a response. Thus, if Republicans are indignantly claiming that Democrats delaying votes to request additional disclosures from and information about key Cabinet picks or seeking to drag their feet on confirming Mr. Gorsuch is fundamentally and substantially different from their move to block Garland’s nomination so as to eliminate their chance of replacing the late Antonin Scalia with someone other than another version of him, let me not mince words by offering that this is complete and unmitigated bullshit. 

Moreover, claiming that “the people” should be effectively allowed to pick the next Supreme Court Justice nominee by choosing the President is also balderdash, hogwash, and poppycock. Not only should politics not get in the way of going through the motions on reviewing a candidate for a SCOTUS vacancy (i.e. if you want to be dicks and refuse him after giving him a hearing, OK, but at least give him that), but numerous constituents did use their voice during the months of the GOP refusal to acknowledge President Obama’s nomination, and it was in protest, with the common refrain from those in dissent being “Do your job!” Especially for members of a political party that has made it a habit of treating those buoyed by the social safety net as lazy, shiftless sorts, refusal by Republican Party leaders to entertain Obama’s selection in the name of politics could be seen as blatantly hypocritical. At any rate, rather than heed the desires of all their constituents, Mitch McConnell and Co. catered to their base. Not terribly surprising, but ideally, not how lawmakers professing to act in everyone’s best interests should be acting.

Before we get ahead of ourselves in conceiving of Democratic Party resistance to Donald Trump’s nomination for the Supreme Court as political ransom, if not brinkmanship, it should be stressed that key Democrats do see legitimate reasons, if not to vote against Neil Gorsuch outright, to, if nothing else, demand the chance to engage him directly on his views and trends within his judicial record. Richard Primus, in a well-thought-out piece about Gorsuch for Politico, identifies him by the designation “Scalia 2.0,” a nod which probably won’t gain him much traction with Scalia 1.0’s detractors. This passage, in particular, perhaps best encapsulates the thrust of Primus’s article, and in doing so, puts President Trump’s nomination in a historical context:

The most sensible way to think of Gorsuch may therefore be to imagine what Scalia might have been if he had come along thirty years later. Scalia came of age at a time when legal conservatives were doing battle with a relatively liberal Supreme Court. Perhaps not surprisingly, they framed their views in terms of judicial restraint and deference to majoritarian lawmaking. Gorsuch’s generation of conservatives, which has lived its whole adult life with a more conservative Court, seems more inclined to see majoritarian regulation as the problem and the judiciary as a good solution.

If Richard Primus makes this very general distinction, though, why the allusion to Judge Gorsuch as a new version of Justice Scalia? Despite the two men operating or coming of age, so to speak, in different eras, they share the same staunchly conservative views on a number of key issues, including abortion, affirmative action, capital punishment, and firearms, which obviously appeals to the right. Meanwhile, noting the divergence within the quoted passage above, Neil Gorsuch tends to differ from Antonin Scalia on the dimension of the role of the courts in relation to business regulation, favoring instead greater judicial discretion and, therefore, diminished capacity for regulatory agencies to interpret existing statutes, and on the specific issue of the First Amendment, Gorsuch appears inclined to view “religious freedom” more expansively, which would stand to give businesses and closely-held corporations more leeway in how they operate and how they pay their taxes (or don’t). Again, a seeming victory for the religious right, notably evangelicals, who came out strongly for Trump in the 2016 election. In all, the concern is that Judge Gorsuch, as a Justice on the Supreme Court, would favor corporate interests over the concerns of average Americans, and would emphasize “religious freedom” over individual liberties and freedom from discriminatory business practices.

In all, representatives from both parties would appear to have important decisions to make in the coming days and weeks regarding Neil Gorsuch’s nomination. For Democrats, the chief concern is whether or not they should compel Republicans to seek 60 votes to confirm President Trump’s nominee. Under a procedural vote known as cloture, the minority party in the Senate has the ability to require the approval of 60 senators to end the debate over a candidate for a position as vital as Supreme Court Justice and advance to an up-or-down vote. Senate Minority Leader Chuck Schumer, for his part, has indicated his party’s intention to seek this strategic avenue rather than to acquiesce Gorsuch’s confirmation, though some Democrats conceivably could be concerned about employing this tactic only to have it used against them in the future, and would accordingly opt to fight harder another day on another issue.

Republicans, meanwhile, could override the 60-vote requirement of the cloture-filibuster-strategic-thing-a-ma-jig—you know, assuming the Dems actually go ahead with a unified front in favor of such a maneuver—by making use of the so-called “nuclear option.” This would involve an actual change of the rules for filibustering a Supreme Court nominee, enabling the GOP to push Neil Gorsuch through the confirmation process like poop through a goose. Donald Trump, because he is a big, stupid baby and wants to get his way all the time, has advised his Republican confederates to use the nuclear option at first sign of a potential deadlock on Gorsuch’s nomination. (Side note: even when not involving actual nuclear weapons, Trump seems way too eager to use the nuclear option. Dude may have a nuke problem, in fact. Just saying.) Understandably, despite their recent history of dickishness, Republican leaders may be reluctant to “go nuclear,” along similar lines as to why Democrats might be hesitant to insist on 60 votes to confirm Judge Gorsuch. As this report by Jake Miller for CBS News details, such a rule change would come fairly close on the heels of a shift in 2014 to require only a 51-vote majority to confirm non-Supreme Court judiciary and executive branch nominees, and could be seen as greasing the ever-slippery slope away from what many would argue is a necessary system of checks and balances for the federal government. Besides, they, too, by changing the rules of the engagement, run the risk of having this tactic turned around on them.

I, of course, as a registered Democrat and as someone who would like to see the Democratic Party regain control of the Senate, if not the House and White House eventually as well, have a dog in this fight over Justice Antonin Scalia’s vacant seat on the Supreme Court. Perhaps unsurprisingly, I hope Senate Democrats filibuster the nomination of Neil Gorsuch, and do whatever is in their power to prolong the confirmation process in light of ideological differences they have with Judge Gorsuch. You know, push back a little. Show us party supporters you have a backbone, for Christ’s sake! Granted, challenging Republicans on the Gorsuch nomination and taking back control of the executive and legislative branches is only as good as the commitment to truly progressive policies and principles, something which isn’t exactly guaranteed from a party that just went all in on Hillary Clinton as its presidential nominee. In the short term, however, Neil Gorsuch can and should be resisted as an extension of Donald Trump’s and the GOP’s pro-business, anti-personal-freedom agenda. Case closed.

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