United States Supreme Court nominee Neil Gorsuch has invoked one of the more inflammatory partisan controversies currently plaguing the nation– at least in terms of domestic concerns. Some of this was inevitable, following the unprecedented refusal of the Republican-majority Senate to grant even a hearing to President Obama’s nominee Merrick Garland following the death of Justice Antonin Scalia in February of 2016. Senate Majority Leader Mitch McConnell (R-KY) (in)famously justified this decision on the grounds that a departing president should not be given the opportunity to make a lifetime appointment. Then, prior to the election, several high-ranking Republicans –including Ted Cruz (R-TX) and John McCain (R-AZ)– stated that if Hillary Clinton won the election, any nominee of hers would face unified opposition as well. Thus, the rumblings from liberal voters in the aftermath of the election that any nominee of President Trump’s should be filibustered by default could perhaps be understood from this alone. However, the issues at hand run much deeper.
Senate Minority Leader Chuck Schumer (D-NY) has declared his intention to filibuster Neil Gorsuch’s confirmation vote, and has rallied the votes to do so. However, this decision did not come immediately upon President Trump’s election, or even upon the selection of Gorsuch as a nominee, as Senator McConnell as well as the President and other top Republicans continue to suggest. Several factors have led to what has ultimately been a measured choice on the part of Schumer and the Senate Democrats. First and foremost, the question of whether a lifetime appointment should be granted to a President presently under investigation by the FBI and committees in both houses of Congress for potential collusion in efforts to influence his own election looms significantly, and not without a heavy sense of irony. Newly-elected Democratic National Committee Chairman Tom Perez has asserted that a vote on any nominee should be delayed until the conclusion of the FBI investigation– a sentiment echoed by Senator Elizabeth Warren (D-MA), among others, leading to Twitter hashtags such as #NoProbeNoRobe and #StopGorsuch, among others, which have reached an audience as of this writing of over 4 million site users.
While that argument alone holds more weight by the day in light of information surfacing daily about President Trump’s Russian connections, there are also significant concerns about the nominee himself. Neil Gorsuch–eminent qualifications aside–has drawn criticism across several categories. First, following then-candidate Trump’s promise to nominate a justice who would work to overturn Roe v. Wade (1973), the intersectional feminist community has been justifiably skeptical of Gorsuch, a skepticism only fueled by the book he authored arguing against physician-assisted suicide. There have also been questions about his tendency to side with big business over workers, fueled by the high profile case in which he sided with the trucking company TransAm after their decision to fire Alphonse Madden, a worker who abandoned a broken down truck when faced with life-threatening hypothermia.
Gorsuch did not help his case, so to speak, by giving one of the most evasive testimonies of any Supreme Court nominee in United States history. Some have claimed this refusal to answer questions about his judicial style or priorities were a justifiable attempt to avoid getting “Borked” (a reference to Ronald Reagan’s nominee Robert Bork who gave a very thorough and detailed testimony, which many have claimed cost him his confirmation). However, it would seem to behoove one under such intense scrutiny to provide some modicum of voluntary disclosure, if only to avoid fueling the fire of obfuscation surrounding everyone associated with the Trump administration at this point. Beyond this, there are questions of his judicial ability: as Gorsuch sat in his confirmation hearings, the Supreme Court unanimously overturned his ruling in Thompson R2-J School District v. Luke P, in which Gorsuch ruled that, in the case of an autistic child, a school district is fulfilling its duties laid down in the Individuals with Disabilities Education Act as long as it is doing ‘more than de minimus,‘ effectively stating that there was nothing wrong with a school doing little more than dragging students with disabilities along in school until they reached an age to legally drop out.
In spite of these concerns, Mitch McConnell has declared his intention to move for a cloture vote–which is the 60 vote threshold required to end debate– Thursday. With the Democrats holding enough votes and having announced the intention to prevent the cloture, in order to overcome the filibuster and confirm Gorsuch in spite of Democratic resistance, McConnell and the Republicans will need to change the Senate operating procedures to allow for the confirmation of a Supreme Court nominee with a simple majority vote. One could craft a dissertation on the insanity of a simple majority vote being sufficient to change the rules to avoid a cloture vote, but I will refrain from the urge. The point, for now, is that McConnell has declared his intention to “go nuclear” and proceed with the rules change, in spite of criticism from both sides that a lifetime appointee should be subject to the 60-vote threshold. As Chuck Schumer has stated, if Gorsuch cannot meet the standard met by every previous Supreme Court Justice, “don’t change the rules, change the nominee.” While plenty of people agree with that sentiment, others have stated that the Democrats should avoid the filibuster, saving it for the next nominee. Still others argue that the Democrats should not fear this so-called “nuclear option,” first because it will only require three Republican defections to avoid the rule change, and second, because if McConnell is willing to change the rules now, there is no reason to believe he will not be willing to do the same in the future. I tend to hold with this position. As Bill Scher stated: “if the operating assumption is that waging a filibuster means losing the filibuster, then the filibuster is already lost.”
Time will tell if the Senate Republicans manage to deliver on their promise to appoint Neil Gorsuch to the Court prior to the Easter recess. In the meantime, I submit this to you as a final point of order:
— This has been the ALF, signing off.