At first blush, it may seem that this blog entry has been overtaken by events given that the full Senate has now voted, Judge Gorsuch has been confirmed and he was sworn in as an Associate Justice on The Supreme Court on Monday. However, I maintain that at least one more nomination fight is in the offing so the arguments presented in the cited articles and the comments on them are, in my view, still relevant.
In early April, two op-ed pieces of interest in the area of Supreme Court nominations appeared in the Washington Post. In the first, on 3 April, Ruth Marcus implored Democratic Senators to forgo using the filibuster (which advice they did not take) to stop the Gorsuch nomination so that the Republicans would not, then, invoke the so called "nuclear option" changing the Senate rules to allow confirmation by a simple majority of 51 votes. She went on to plead with Republican Senators to vote against using the "nuclear option" in response to a Democratic filibuster (which advice was also spurned). Ms. Marcus' arguments to the two groups were: First, that these actions are bad for the Senate; and then to each party---to Democrats---save your powder for the NEXT Republican nomination which will be much more important in terms of the liberal to conservative ratio in the make up of the court; and, to Republicans---if you go nuclear, you'll be sorry the next time you are in the minority and there is a Democrat in the White House.
In making her case, however, Ms. Marcus reveals the real problem she and many other liberals seemed to have had with the Gorsuch nomination. To wit: they can't get over their pique about the case of Merrick Garland. They are full of righteous indignation with Ms. Marcus writing, "The seat was President Barack Obama's to fill and Merrick Garland's to occupy." She seems to have forgotten that in 1992, the highly regarded Democratic Chairman of the Senate Judiciary Committee at the time, Joe Biden, argued that President George Bush should delay filling a vacancy on The Court, should one arise, until after the presidential election. And, moreover, if the president did, in fact, put forward a nomination, Mr. Biden said the Senate should refuse to confirm the nominee--the so-called "Biden Rule". I see no essential difference between that position and the one taken by the Senate Republican leadership regarding Judge Garland.
Ms. Marcus also addressed the previously mentioned Senate rule change, calling it "...the once unthinkable mechanism of the 'nuclear option' ". And she's right, of course. The "nuclear option" was unthinkable until the then Majority Leader, Senator Harry Reid, Democrat of Nevada, first exercised it when the Democrats held the majority in the Senate and wanted to push President Obama's judicial nominees. Sauce for the goose, my friends, sauce for the goose.
The second op-ed, on 5 April, was from the pen of the ever popular E.J. Dionne who, while recognizing that advice like Ms. Marcus' had been given to progressives by several other pundits, he, himself counseled the left to mount "tough resistance" to conservatives because "It's past time to have it out." Mr. Dionne says that time has run out because past "...graciousness and tactical caution have only emboldened the right...as they try to turn the highest court in the land into a cog in their political machine."
GRACIOUSNESS??? One wonders if Mr. Dionne remembers the William Rehnquist, Robert Bork or Clarence Thomas nomination hearings where each of the nominees was savaged by Democratic Senators. In the case of Judge Bork, this treatment was so vicious that in the current lexicon, systematic defamation, vilification and unfounded character assassination of a candidate is referred to as having been "Borked". I don't remember Obama nominees Elana Kagan or Sonia Sotomayor being subjected to that sort of treatment, let alone a filibuster, during their confirmation proceedings. Don't talk to me about "graciousness".
In another section of his article, Mr. Dionne, apparently in support of his contention that the Republicans are and have been politicizing The Court, goes all the way back to Bush v. Gore and W's subsequent nomination of John Roberts as Chief Justice. He writes, "Roberts, it's worth noting, went to Florida as a volunteer lawyer advising then-Gov. Jeb Bush, who had a rather large interest in his brother's victory." There you have it---case closed---Bush stole the election and the Chief Justice is a bought and paid for pawn of the right wing. How ridiculous! Also, it is interesting to note that absent from Mr. Dionne's argument is the fact that Chief Justice Roberts, through some pretty convoluted reasoning about the Congress' power to tax, also cast the deciding vote in favor of President Obama's position, thereby allowing the Affordable Care Act to be upheld as constitutional when conservatives wanted to sink it! Hardly a position expected of a latter day John Bircher.
I said earlier that I think there will be at least one more controversial nomination to the Court during the Trump administration. With Justices Breyer, Kennedy and Bader-Ginsberg at ages 78, 80 and 84, respectively, there could well be more than one. And if there is, we should expect to see at least a renewal of or, more likely, an increase in the vitriol which attended the Gorsuch nomination.
And if that happens, watch this space for comments---both mine and yours.