Neil Gorsuch, who won unanimous approval from the Senate upon his appointment to the federal bench more than a decade ago, now faces a Democratic caucus nearly as unanimous in its filibuster of him. Donald Trump can have that effect on a Supreme Court nominee.
Indeed, when Senate Majority Leader Mitch McConnell quips, “Democrats would filibuster Ruth Bader Ginsburg if President Donald Trump nominated her,” one senses that the statement, a rarity in political rhetoric, passes a hyperbole-detector test.
A perfunctory Democratic filibuster followed by a predicted exercise of the “nuclear option,” which suspended Senate rules by the Republicans and made Gorsuch’s confirmation on Friday all but confirmed.
Whoever said you can’t win by picking unwinnable battles never said it to Chuck Schumer. Democrats opted to fight the good fight, which tends to undermine future attempts to fight the winning fight. This represents a role-reversal of sorts for Democrats and Republicans. Until recently, conservative legislators played Charlie Brown kicking the football to the role of Lucy pulling it away played by Republican presidents, whose stealth nominees invariably revealed themselves as liberals once on the court.
Democrats nominated just eight of the last 25 justices to the Supreme Court. But because Republican presidents nominated the likes of Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, and David Souter, liberal majorities ruled the Supreme Court throughout the lifetimes of just about everybody reading this. The phenomenon, captured in the title of Patrick Buchanan’s 1975 book Conservative Votes, Liberal Victories, effectively meant a veto on conservative laws, particularly ones passed at the state level. Jurists nominated by Republicans authored the decisions in Roe v. Wade, Kelo v. New London, National Federation of Independent Businesses v. Sebelius, and so many lesser-known cases whose decisions usurped the rights of states and individuals.
John Stuart Mill didn’t call conservatives “the stupid party” for nothing. But even slow people figure it out, albeit, as their name suggests, more slowly, and conservatives blocked George W. Bush’s suspected stealth pick Harriet Miers and stood firmly in blocking a vote on Barack Obama’s nomination of Merrick Garland. They learned, not just from Republican failures but from Democrat obstructionism, particularly regarding the conservative nominees of Richard Nixon and Ronald Reagan. Trading Miers for Samuel Alito and Garland for Gorsuch looks a lot like the deals Red Auerbach once pulled on hayseed general managers throughout the NBA.
The payoff for McConnell’s gambit on Garland appears especially generous given the widespread declarations that replacing Antonin Scalia with a consistent liberal vote represented a historic sea change. “The Supreme Court’s Conservative Run Is Over” (Politico), “The Conservative Era of the Supreme Court Is Over” (Los Angeles Times), and “After 45 Years of Conservative Rulings, Here’s What a Liberal Supreme Court Would Do” (Washington Post) read a few of the headlines. What a difference a year makes!
The Kentucky senator in saying “no” to the nomination of a respected jurist despite misgivings by some in his party and betting on an unlikely victory by the presidential candidate of his party effectively cashes in on a 25-1 shot at the Kentucky Derby. This could have blown up in McConnell’s face in a number of different ways. A few members of his party could have defected to confirm Garland. President Hillary Clinton could have nominated a judge far more left-wing than Garland. President Trump, who talked a good game regarding the courts while displaying sketchy credentials, could have nominated another Brennan, Stevens, or Souter. The public could have soured on his party’s recalcitrance. Instead of any of those distressing counterfactuals becoming factual, the Senate majority leader delivered an originalist nominee. Whether or not the much-maligned McConnell utilizes the floating games of chance on the Ohio River, the senator certainly makes for a gutsy riverboat gambler.
That said, Gorsuch joining the court does not make for a decisive conservative bloc on the high bench. Despite headlines proclaiming 45 years of conservative rulings, the Right last enjoyed a majority on the court in the early days of the New Deal. The addition of Gorsuch just gives the high bench, at least as far as votes, the status quo ante. The solid Clarence Thomas-Samuel Alito-Gorsuch faction finds more than its negation in the equally solid bloc of Ruth Bader Ginsburg-Sonia Sotomayor-Stephen Breyer-Elena Kagan. John Roberts and Anthony Kennedy, though leaning conservative on most issues, play as wildcards able to act as the deciding votes.
It’s unlikely, particularly given the minor scandal over plagiarized passages in Gorsuch’s written work, that he arrives at the court as Scalia’s intellectual equal. But he betters him in age and health. Conservatives should take that tradeoff as enthusiastically as they do the Garland-for-Gorsuch exchange.
