Thoughts on Nomination of Judge Gorsuch to the Supreme Court

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Posted on: 02/11/2017 by Josh Silverstein

Set forth below is a "synopsis" of my current thoughts on the nomination of Judge Gorsuch to the U.S. Supreme Court to replace Justice Scalia.

1. Judge Gorsuch is exceptionally well qualified to serve on the Supreme Court. As a result, there is no colorable argument that he lacks any necessary credentials. Opposition to his appointment must be based on some other ground.

2. Gorsuch is very similar to Scalia in terms of his legal views. In other words, Gorsuch is quite conservative legally.

3. One substantive basis often articulated for opposing a nomination is that the nominee's legal views "fall outside the mainstream of legal thought." The main problem with this standard is that it is highly subjective. One's views about what constitutes "mainstream" thought are often driven to a substantial degree by one's own legal views. Thus, not surprisingly, there are significant disagreements among liberals and conservatives over whether Gorsuch (and Scalia and others on both the left and right) fall within the mainstream. With all that said, while I am a liberal, both politically and legally, I believe that Gorsuch's views generally deserve to be called mainstream. I have not come close to an exhaustive review of his work. But based on what I have read, I have yet to see an example of a decision that I thought was so wrong that it caused me to question Gorsuch's judgment - i.e., a ruling "outside the mainstream" rather than one I merely disagree with.

4. As a general matter, it is both morally and legally appropriate for a Senator (or anyone else) to oppose a nominee simply on the ground that one disagrees with the nominee's legal views. In other words, it is morally and legally appropriate to oppose a nominee despite believing that the nominee (1) is qualified, and (2) holds views that fall within the mainstream. And throughout our history, many Senators have indeed voted against nominees on precisely this ground (though only a subset have been willing to admit it when they have done so). It is also morally and legally appropriate to grant some deference to the President. Most Supreme Court nominees are qualified and fall within the mainstream. As a result, for most of us - Senators and non-Senators alike - the issue of confirmation is largely a balance between (a) how much we disagree with the nominee on the law, and (b) how much deference we are willing to grant the President in the selection process. (There are other factors too; hence the reason I used the word "largely."). Different people will implement the balance in different ways. And the circumstances of this particular nomination are atypical. As a result, there is a wider array of relevant circumstances this time around. (For more on this, see point 8 below.)

5. If Judge Gorsuch is confirmed, the Supreme Court will return to the basic alignment it had from the summer of 2005 up to the death of Justice Scalia last February: 4 liberals, 1 moderate who leans somewhat more to the right (Kennedy), and 4 conservatives. I find highly implausible the suggestion that Gorsuch will pull Kennedy to the right to any real degree. After 29 years on the Court, I don't think Justice Kennedy will be influenced in his rulings by a change in Court membership. Now, whether Gorsuch's appointment might influence Kennedy to RETIRE is another story. But any change in Kennedy's legal analysis will be extremely mild, at most, and there will likely be no change at all.

6. The next justice to leave the court is likely to be Justice Ginsburg, Justice Breyer, or Justice Kennedy. If President Trump were to replace any of those three justices with a conservative like Scalia or Gorsuch, that would almost certainly lead to fundamental changes in American constitutional law. For example, decisions like Roe v. Wade (abortion) and Obergefell v. Hodges (same-sex marriage) could well be on the chopping block. And cases like Citizens United (campaign finance) would become much more deeply entrenched.

7. The filibuster applies to Supreme Court nominees and to most legislation. It no longer applies to executive appointments or judicial appointments, and it has not applied to some types of legislation for a long time. As a result, Democrats could filibuster Gorsuch's appointment. The Republicans only have a 52-48 edge in the Senate. Thus, Republicans would need 8 Democrats to cross party lines to defeat a filibuster (which requires 60 votes). However, if they aren't able to persuade 8 Democrats to crossover, the Republicans could eliminate the filibuster for purposes of Supreme Court appointments with a simply majority vote - the so-called "constitutional option" or "nuclear option."

8. There has been serious debate among liberals and Democrats over how we should approach the Gorsuch nomination. Some believe we should fight against confirmation with every tool available - including, most critically, the filibuster. Call this the "resistance" approach. Others believe we should wait for a fight that is more consequential in terms of its impact on constitutional law (i.e. the next appointment). Call this the "restraint" approach. This approach doesn't mean Democrats should do nothing. Indeed, to the contrary, the restraint option involves what we might call "extreme vetting," including extensive Senate hearings, an exhaustive review of Judge Gorsuch's record, and much else. The primary difference between resistance and restraint is in the approach taken to the filibuster. Resistance advocates say yes to filibustering Gorsuch. Restraint advocates say no.

I have set forth some arguments for both positions under points 8a. and 8b. below. The lists are not comprehensive and many of the arguments overlap. And for obvious reasons I have not included any points where the two sides agree (for example, most Democrats and liberals believe that Judge Gorsuch's conservative view of the Constitution is legally wrong in numerous critical respects). 

8a. Resistance

(i.) Better to draw a line in the sand now than allow a smooth confirmation that will provide President Trump with a crucial victory.

(ii.) The Republicans failed to confirm Judge Garland. That move constituted crossing the Rubicon. In other words, the confirmation process has now become so irrevocably politicized that there should be maximum (or near maximum) opposition to all appointments from the other side for the foreseeable future.

(iii.) Alternatively, we didn't cross the Rubicon with Garland, but the Republicans deserve to be punished in this instance for failing to confirm Garland.

(iv.) A Democratic filibuster would cause the Republicans to eliminate the filibuster for Supreme Court appointments, which would nullify the filibuster for all purposes. For those who oppose the filibuster as a general matter (like me), this would be a very welcome development.

(v.) Forcing the Republicans to eliminate the filibuster would also have political benefits. Since Democrats made the last group of changes (ending the filibuster for lower court and executive appointments), it would look better if Republicans finish the job.

(vi.) There is no reason to save political capital for the next nomination battle, because the Republicans will just get rid of the filibuster next time if Democrats don't force them to do it this time. 

(vii.) Our political system has reached the point where the minority party generally makes more gains politically by obstruction than by cooperation. So filibustering will aid the Democrats' long-term political prospects.

(viii.) The Democats might take back the Senate in 2018, despite the unfavorable electoral map, or in 2020. As a result, this might be the only opportunity to resist in full. If Democrats don't filibuster this time, they have missed the opportunity to use the biggest gun in the arsenal. And if Democrats do retake the Senate, the political capital we are saving for another fight as the minority will simply not be necessary, so we might as well use it now.

(ix.) Since the Republicans will eliminate the filibuster if Democrats use the tool against Judge Gorsuch, there is little need to worry about the Supreme Court being handicapped by having only 8 members.

(x.) Judge Gorsuch is so conservative that he deserves to be considered outside the mainstream.

8b. Restraint

(i.) This appointment is inconsequential in comparison to the next one. Democrats would be better served by saving as much political capital as possible for the fight to come. Even though the Republicans can simply eliminate the filibuster next time, better to force their hand when there is far more at stake and the move could be more easily painted as a partisan attack on "critical aspects of the American system."

(ii.) Assuming the Republicans are prepared to elminate the filibuster this time around, it is hard to see what can be achieved by filibustering Judge Gorsuch's nomination.

(iii.) The elimination (or critical weakening) of the filibuster could cause numerous problems for Democrats over the next four years, eight years, or even longer. There are plausible arguments for wanting to preserve the filibuster, in the short or long term.

(iv.) Obstruction via the filibuster could backfire politically. Perhaps our political system hasn't changed so much. If Democrats filibuster such a qualifed candidate when the stakes are lower, they may be punished at the ballot box (and otherwise) rather than the Republicans (whether the Republicans eliminate the filibuster or not).

(v.) The nominations of Judge Garland and Judge Gorsuch are different. The opening on the Court that led to the nomination of Judge Garland took place during an election year. Thus, the Republicans actions in refusing to even hold hearings for (let alone confirm) Judge Garland is qualitatively different from Democrats trying to undermine President Trump's attempt to fill an open seat at the start of his Presidency.

(vi.) The Democrats might take back the Senate in 2018, despite the unfavorable electroal map, or in 2020. Thus, the Democrats may never need to filibuster when the truly important Supreme Court vacancies occur. All out resistance now may undercut the chances of retaking the Senate (or the Presidency) in 2 or 4 years time.

(vii.) If the Republicans blink and do not eliminate the filibuster, the Supreme Court might be stuck with only 8 justices for quite a long time. That would cause serious problems for the legal system, and thus for the country, problems that will be greater than the damage Judge Gorsuch could do as the fourth conservative member of the Court.

(viii.) Judge Gorsuch is NOT so conservative that he deserves to be considered outside the mainstream.

9. A number of commentators have argued that, strategically speaking, there is a clear answer as to what Democrats should do. Some believe the case for a filibuster and all out resistance is a slam dunk. Others believe the case for restraint is a slam dunk. Don't believe either side. The articles I have read that claim with certainty or near certainty that one strategy is the right one are quite unpersuasive. First, they are woefully short on evidence. At best, the articles have presented a few anecdotes to support their case for resistance or restraint. Second, much of the evidence that is presented is unrelated to the current Supreme Court appointment. Third, even the evidence that is plausibly related to the current appointment often comes from political eras that are quite different from the current one. If President Trump's election shows anything, it shows that many of the "rules" of politics need to be reconsidered. Let me be clear. I am not suggesting that there is no basis for believing resistance or restraint is the better course of action. Rather, I am arguing that the case for either resistance or restraint is almost certainly not a slam dunk, and thus you should take any article that makes such a claim with a giant mountain of salt.

10. Given what I have written in points 8 & 9, it should not be surprising that I have some real uncertainty about the best approach for Democrats and liberals. Looking at the totality of the circumstances, my provisional conclusion is that Democrats and liberals should show restraint this time around. In other words, we should not filibuster Judge Gorsuch; we should save our political capital for the next fight. But I think the case for resistance is very plausible. And thus, if the Democrats in the Senate and their allies outside of it choose to go down the resistance path, I will stand with them.

Josh Silverstein is a Professor of Law at the University of Arkansas at Little Rock.

 

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