There was a time unlike now — 1987-88, for example — when a political fight in the U.S. Senate over a U.S. Supreme Court nomination could produce seismic results and matter for a generation.
It was a politically healthier time.
In 1987, Ronald Reagan nominated a strict conservative ideologue, Robert Bork. The nomination was to replace Lewis Powell, who had been a moderate swing vote leaning left on a woman’s right to choose and affirmative action.
It was big. Reagan was trying to reposition the tilt from the left to the right.
The Democrats blocked Bork, rather heavy-handedly. Reagan wound up, after the failed interim nomination of Douglas Ginsberg, nominating Anthony Kennedy, a more moderate conservative.
Kennedy was confirmed. He serves on the court still. He has been over these decades mostly right-of-center, but sometimes — rather reliably, in fact — the decisive vote on preserving a woman’s right to choose.
The Democratic political assault on Bork, while unattractive, amounted to an epic political operation that affected the rule of law on our most divisive issue for three decades.
Today Neil Gorsuch is a perfectly qualified nominee, objectionable only in that he is more conservative than many would like. His nomination would merely restore the high court’s status quo existing when Antonin Scalia was alive, which is 5-4 to the right or 4-4-1 on some big issues. His confirmation seems inevitable no matter what the Democrats do.
Senate Democratic leader Chuck Schumer has said he will filibuster against Gorsuch’s nomination, which means 60 votes would be required to close debate. If he does that, and if the Democrats can’t produce eight senators to vote with the 52 Republicans to end the filibuster, then the Republicans likely will respond by imposing the so-called nuclear option. That means changing the rule to allow the nominee to be considered absent the right of filibuster, meaning by a simple majority.
There is sound and time-honored reasoning in holding something as important as a nomination to the Supreme Court to a 60-vote standard. But the filibuster ought to be imposed only for real stakes, not as standard operating procedure. Filling Scalia’s seat with Gorsuch presents no worthy stakes.
What’s going on has nothing to do with Gorsuch or the direction of the court, which will be set by the next nominee, perhaps to replace the possibly retiring Kennedy — of the decisive pro-choice position — or to replace perhaps an aging and ailing liberal.
What’s going on is that Democrats are mad over the way Republicans treated Barack Obama’s nominee for this vacancy, Merrick Garland, for an entire year. Wholly unfairly, indeed outrageously, Republican senators simply refused to take up that nomination. It galls Democrats, understandably, to think that Republicans, after that, will roll through without a fight a nomination that shouldn’t be theirs.
What’s also going on is that Republicans are mad that, in 2013, Democrats used that nuclear option to end filibusters on most executive nominations and all judicial nominations except those to the Supreme Court.
If the Democrats stall Gorsuch out of spite over Garland, then Republicans will go nuclear out of spite over the Democrats going near-nuclear in 2013.
If it all sounds childish and dysfunctional, it’s because it is.
Powder that both sides should save instead will be used up.
A Democratic filibuster against Gorsuch might matter only on one big case, and only as a matter of timing.
Republicans want to get Gorsuch confirmed by the April 7 recess so that he may join the court for consideration beginning April 19 of a case posing a major issue about separation of church and state. They fear a 4-4 court vote otherwise that would preserve the lower-court ruling.
Democrats wouldn’t mind gumming up Gorsuch’s nomination if only for a short while and leaving that case to the 4-4 split. If the Republicans could affect constitutional law for a year by stalling on Garland, couldn’t they affect it for a few days by stalling on Gorsuch?
The case is that of a Lutheran church in Missouri that runs an early childhood program serving a low-income constituency. The church is seeking to accept a federal grant under a program having to do with recycled tires to convert its playground to a synthetic material.
The federal district court and the circuit court of appeals both ruled that the church’s accepting the public money violated the establishment clause forbidding the government from establishing religion.
The church is appealing on the basis that the grant is for a purely public service having nothing to do with the religious doctrine of the church.
It’s a big case, less for a single playground than for broader ramifications. It might be worth a brief delaying tactic.
But for the longer term, Gorsuch ought to go on the Supreme Court even though Garland ought to be there already, and the filibuster should be preserved.
There’s a bigger fight looming. If somebody is going to get “Borked,” and if anything is going to get blown up, that’s the time.
John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers’ Hall of Fame in 2014. Email him at [email protected]. Read his @johnbrummett Twitter feed.