President Trump’s original plan was to announce his nomination for the Supreme Court on Thursday — Groundhog Day — which would have been perfect. Unfortunately, the mess he made of an executive order aimed at Muslim refugees and immigrants, spawning a public backlash last weekend, required him to change the subject by moving up the Supreme Court announcement to Tuesday.
The reason Groundhog Day would have been perfect for the high court nomination is that we have seen this routine over and over in recent years, and somehow we never remember how it turns out. So Trump’s nominee, our Boulder County neighbor, Neil Gorsuch, is required by a well-worn fiction to declare that he would bring no ideology to the court, no desire to legislate from the bench, only an earnest, freedom-loving loyalty to the U.S. Constitution.
How many Supreme Court nominees have made this claim over the past 30 years? Well, all of them. Ronald Reagan’s 1987 nomination of Robert Bork is a cautionary tale for every subsequent nominee. Like Gorsuch, Bork was an “originalist,” meaning that he claimed to believe in interpreting the Constitution according to what its authors meant when they wrote it in the late 18th century. Unlike Gorsuch, he was a public evangelist for this view, meaning he had made it known he found no right to privacy in the Constitution. This was tantamount to a public declaration of opposition to Roe v. Wade, the 1973 decision legalizing abortion.
Bork’s nomination was rejected by a Democratic-controlled Senate, 58-42. Since then, nominees who have made it to a confirmation vote are 10 for 10. (The nominations of Douglas Ginsburg and Harriet Miers were withdrawn prior to confirmation votes, by Reagan and George W. Bush, respectively. The nomination of Merrick Garland by Barack Obama was never acted on by a Republican-controlled Senate.)
This perfect record before an increasingly polarized Senate has been the result of nominees keeping their opinions to themselves and promising, in the famous analogy of Chief Justice John Roberts, to be humble umpires, doing little more than calling balls and strikes. This from a man who has had a hand in politically thunderous decisions on voting rights, campaign finance and health care, to name only three.
Even a passing familiarity with the behavior of the high court in recent years should produce hearty laughter at these individual claims of ideological neutrality. Until the death of Antonin Scalia, whose seat Gorsuch is nominated to fill, the right wing predictably included Scalia, Roberts, Clarence Thomas and Samuel Alito. With rare exceptions, they supported Republican Party positions on the major political issues of the day. The left wing includes Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. With rare exceptions, they support Democratic Party positions.
Anthony Kennedy has been a swing vote on some issues, but usually sides with the conservatives, giving them a majority in a series of 5-4 decisions that Democrats blame for gutting major pieces of liberal legislation. Should Kennedy, 80, retire to permit Trump to name another conservative, liberals fear women’s reproductive rights, and even Roe v. Wade, may again be targets.
Considering the recent tradition of the two parties trading the presidency back and forth, the shift from left to right on the court since Reagan has been largely the result of two monumental trades during the single-term presidency of George H.W. Bush — conservative Clarence Thomas for civil rights legend Thurgood Marshall Jr. and moderate David Souter for liberal lion William Brennan. Democrats, who controlled the Senate at the time, deferred to the president despite the dramatic ideological shifts. Although the liberal Sotomayor later replaced Souter, the conservative Alito replaced moderate Sandra Day O’Connor, so the net effect was two pickups for strict conservatives.
When Scalia died last year, Obama nominated Garland, a centrist previously praised by high-profile Republicans. But now Republicans declared that Scalia could be replaced only by someone like-minded. Senate Majority Leader Mitch McConnell announced the Senate would ignore Garland’s nomination. Scalia’s seat has remained vacant ever since.
This increasing partisanship should come as no great surprise. The majority in the court’s 5-4 vote to hand the presidency to George W. Bush over Al Gore in 2000 consisted entirely of Republican appointees and made the court look every bit as partisan as Congress. McConnell’s rationalization for ignoring the Garland nomination was that no confirmation vote should take place in the final year of a president’s term, even though Kennedy was confirmed in the final year of Reagan’s. Other Republicans advocated leaving the seat vacant indefinitely if Hillary Clinton won the presidency. Sen. Ted Cruz said a smaller court would be fine.
So the rules have changed. The only question now is whether Democrats will adapt. As David Leonhardt wrote last week in the New York Times: “Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied.”
By a variety of accounts, Gorsuch is a nice guy and a smart guy, but anyone who believes he won’t join the court’s hard-right bloc probably uses “Kumbaya” as a ringtone. Unless the Democrats want to volunteer to play victims in an abusive relationship, they should use every tool at their disposal to oppose the theft of a court seat that would have been Garland’s before the rules changed. That means filibustering the Gorsuch nomination and forcing McConnell to abolish the filibuster on high-court nominations in order to get him through. Perhaps only such drama will show their unhappy base that the scales have fallen from Democrats’ eyes.
The partisan polarization of the modern Supreme Court on major social and political issues is a fact. Democrats can acknowledge it or they can continue to watch their achievements in the other two branches of government wiped out by a party that plays the game better than they do.
—Dave Krieger, for the editorial board. Email: kriegerd@dailycamera.com. Twitter: @DaveKrieger
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