7 April 2017

Notes From Norm: Judge Neal Gorsuch will be confirmed today by the United States Senate

Judge Neal Gorsuch will be confirmed today by the United States Senate. That’s a good thing.

At 49 years of age Judge Neil Gorsuch represents a solid choice by President Donald Trump to serve on the United States Supreme Court.

Senate Democrats, lacking the votes to do much more than engage in one delaying tactic after another, did what they could to block Gorsuch’s ascent to the Supreme Court.

This is neither surprising, nor is it noble, of Senate Democrats.

Senate Democrats, under the leadership of Senate Minority Leader Chuck Schumer, have picked up where former Senate Minority Leader Harry Reid left off.

Reid, having nearly broken the Senate and making a career out of ruining any sense of comity the Senate once had, left the Senate in a far worse place than he found it.

Schumer, whose reputation has been one of being partisan, but more capable of working across the aisle than Reid, seemed to offer some hope that the days of partisan gridlock would end in the Senate.

Sadly, Schumer is destroying that reputation.

Senator Schumer, shortly after Gorsuch was nominated, wrote an opinion piece insisting that Judge Gorsuch needs no fewer than 60 votes to be approved to serve on the Supreme Court.

Furthermore, Schumer has the audacity to protest suggestions that Republicans exercise the so-called “Nuclear Option” to place Gorsuch on the court if Democrats attempt to filibuster his appointment.

Interesting since Schumer was one of the Democrats who were more than eager to exercise the “Nuclear Option” in 2013 when Harry Reid lead Democrats to alter filibuster rules lowering the number of Senators needed to confirm presidential nominees from 60 to a simple majority of 51.

While Schumer argues that the action excluded Supreme Court nominations from the change there’s great irony that Schumer opines that what was good for the Democratic goose in 2013 is no longer good for the Democrat gander in 2017.

Republicans pleaded with Democrats not to make the change.  They made it clear that what goes around comes around.

But, Harry Reid wouldn’t be swayed.

It’s always been my belief that a President should be given the right to appoint who he or she believes is the best qualified to help lead the government. The Senate has the constitutional responsibility to advise and consent. They’ve always done that.

If they do not support that candidate they should vote against them.

If they do support that candidate they should vote for them.

But, they should not deprive the President a vote using a tool of the Senate that was intended to prevent an abuse of power by the majority of the body.

I believe strongly in the filibuster as a way to give the minority voice and a tool to prevent misguided legislation and policy from becoming the law of the land.  That tool is still in place.

Yet, it has become an egregious tool to prevent a duly elected President from appointing men and women of his choosing to fill the government he or she has been given the responsibility to lead.

Democrats claim Republicans did the same thing to Merrick Garland, President Obama’s choice to fill the Supreme Court, as a justification for their divisive actions on Gorsuch.

I can understand their frustration.

But the Senate is a body still impacted by precedent.

Mitch McConnell refused to give Garland a hearing because he believed the next President, which, at the time, appeared likely to be Hillary Clinton, deserved the opportunity to make their own nomination to the high court.

Furthermore, McConnell believed that having a Supreme Court nominee facing hearings during a presidential campaign would further inflame passions in the country and the Senate. This was not a novel argument. Rather the precedent was made in 1992 by then United States Senator, Chairman of the Senate Judiciary Committee, former Vice President, Joe Biden.

The following excerpt is from a Senator Joe Biden speech on the floor of the U.S. Senate in 1992 echoing McConnell’s concerns from 2016.

”But in a speech on the Senate floor in June 1992, Mr. Biden, then the chairman of the Judiciary Committee, said there should be a different standard for a Supreme Court vacancy “that would occur in the full throes of an election year.” The president should follow the example of “a majority of his predecessors” and delay naming a replacement, Mr. Biden said. If he goes forward before then, the Senate should wait to consider the nomination.

“Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it, but that would not be our intention,” Mr. Biden said at the time. “It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.

“That is what is fair to the nominee and essential to the process. Otherwise, it seems to me,” he added, “we will be in deep trouble as an institution.”

Choosing to filibuster a President because his choice to be on the Supreme Court does not fit the ideology of the minority caucus in the Senate is, to be sure, their right.

But using that right doesn’t make it right.

Especially when it comes to a nominee who is as qualified as Gorsuch.

He is smart, qualified, lacking in ideology and committed to being the kind of thoughtful jurist that Americans hope to see elevated to the high court, but the kind of judge that Democrats want to claim is out of the mainstream.

Jeffrey Rosen of the National Constitution Center had this to say about Gorsuch,

“The real appeal of Gorsuch nomination is he’s likely to be the most effective conservative nominee in terms of winning over Anthony Kennedy and forging conservative decisions on the court…He’s unusual for his memorable writing style, the depth of his reading and his willingness to rethink constitutional principles from the ground up. Like Justice Scalia, he sometimes reaches results that favor liberals when he thinks the history or text of the Constitution or the law require it, especially in areas like criminal law or the rights of religious minorities, but unlike Scalia he’s less willing to defer to regulations and might be more willing to second-guess Trump’s regulatory decision.”

Gorsuch deserves to be appointed with a minimum of 60 Senate votes.

Democrats have made it clear by denying him the votes needed to get to 60 votes because they can.

In the absence of 60 votes Democrats have given Senate Republicans the option of approving Judge Gorsuch with 51 votes because they can.

In the end if they can, they must.