The recent history of conservatives and the Supreme Court looks a lot like Charlie Brown kicking at the football, the Washington Generals hypnotized by Meadowlark Lemon spinning a basketball, or George McFly wearing a kick-me sign on his back in the halls of Hill Valley High School.
So, Senate Majority Leader Mitch McConnell’s gambit of blocking Barack Obama’s pick Merrick Garland, which President Donald Trump seeks to parlay into placing the Antonin Scalia-style originalist Neil Gorsuch on the court, appears as a dramatic turnabout, à la George McFly belting Biff outside of the Enchantment Under the Sea dance.
Liberals accustomed to getting their own way, or at least to conservatives getting in their own way, on Supreme Court nominations appear especially perturbed.
“This seat on the Supreme Court was stolen from Barack Obama when Republicans refused to even hold hearings for his nominee,” Charles Blow writes in the New York Times, “and the election was stolen from the American public by maleficent figures, foul of motive and moving in shadows.”
In other words, whether Trump nominated Neil Gorsuch or Neil Nonesuch, a fight loomed. Not the nominee but the circumstances of the nomination predetermined the acrimony.
The Gorsuch pick represents a maturation of conservatives. They once took a wait-and-see attitude on stealth nominees. Conservatives now demand judges who see the Constitution as something other than a Mad Libs game.
Unforced errors (David Souter, John Paul Stevens, Harry Blackmun), borkings and withdrawals (Robert Bork, Clement Haynesworth, Douglas Ginsburg), and mixed bags (John Roberts, Anthony Kennedy, Sandra Day O’Connor) mark the missed opportunities that turned, as one book title prophetically put it, conservative votes into liberal victories. Republican nominees penned the decisions in Roe v. Wade, Kelo v. New London, NFIB v. Sebelius, and so many of the cases disastrous to the conservative cause.
John Stuart Mill didn’t call the conservatives “the stupid party” for nothing.
A won’t-get-fooled-again turning point occurred during the administration of George W. Bush, when he attempted to place Harriet Miers on the Supreme Court. Rather than docilely hoping for the best, conservatives burned in the past opted to rebel. The result? The solid Constitutionalist Samuel Alito. That pleasing outcome for the Right led to the brazen power-play successfully executed by McConnell. This could have backfired in a big way. But the veteran pol understood the political winds, called the right play, and won a major victory for conservatives often critical of him.
Gorsuch resembles neither the blank slates nor the empty suits favored by past Republican presidents more interested in avoiding fights in the Senate than in placing the best jurists on the high court. Gorsuch earned legal degrees at the best schools on both sides of the Atlantic (Harvard and Oxford), clerked for two Supreme Court justices (Byron White and Anthony Kennedy), and won unanimous support from the Senate when nominated for the tenth circuit. His rulings (Hobby Lobby, Little Sisters of the Poor) and writings reflect a judge faithful to the law instead of an ideology. In other words, Gorsuch looks like a conservative jurist embracing a moderate temperament and establishment pedigree.
Lest Democrats resolve to reflexively vote against all of Trump’s high-court picks, Gorsuch appears as a poor nominee upon which to start a fight. His résumé makes this so. But so, too, does the weak position of the Democrats. The opposition occupies only 48 seats in the Senate, with ten such Democrats facing reelection in red states in 2018. The fight not only looks nearly unwinnable for Democrats, it stands to produce casualties for their side, too.
Why start a fight you can’t win? Catharsis serves as a bad trade for a black eye.
Surely losing on a matter of such consequence leaves a bitter taste in the mouths of liberals. Conservatives, remembering Earl Warren, Harry Blackmun, John Paul Stevens, and David Souter, know the taste all too well.