President Donald Trump’s nomination of Neil Gorsuch to replace the late Justice Antonin Scalia on the Supreme Court is another demonstration of his quest for excellence throughout government.
Judge Gorsuch has distinguished himself on the 10th Circuit Court of Appeals in Denver, Colorado, and is most notably the son of the late Anne Gorsuch Burford, the first female administrator of the Environmental Protection Agency under President Ronald Reagan.
In the Affordable Care Act case Hobby Lobby Stores v. Sebelius, Gorsuch sided with the company and its owners upholding the concept that the state does not decide the tenets of individual faith, but instead that is up to the individual parties to determine. In the equally significant Little Sisters of the Poor and Home for the Aged v. Burwell case, Gorsuch similarly argued that the law should defer to the religious understanding of the group or individual rather than seeking to dictate that meaning.
The nomination is expected to face strident opposition by Senate Democrats in spite of Gorsuch having what Eric Citron describes in an onScotusblog.com profile, “… a keen legal thinker and a particularly incisive legal writer, with a flair that matches — or at least evokes — that of the justice whose seat he would be nominated to fill.”
The Washington D.C. political tabloid Politico quotes Oregon Democrat Senator Jeff Merkley as promising that, “he will use every lever in our power to stop this,” promising to filibuster any pick that is not Obama’s 2016 choice Merrick Garland. Merkley went on to call the Court vacancy, “… a stolen seat. This is the first time a Senate majority has stolen a seat.”
The determination of Senate Democrats to stop any Trump nominee goes all the way to Minority Leader Chuck Schumer of New York who promised to, “fight tooth and nail” if the nominee does not meet his definition of being mainstream.
No matter who President Trump picked, the battle lines had already been drawn throughout D.C. and indeed, the country with Senate Democrats digging in their heels and attempting to persuade any of the 52 Senate Republicans to their side so they can claim that they have bi-partisan opposition. On the other side of the aisle, Republicans will be working to convince eight Democrats to join their ranks in a confirmation vote for Gorsuch who in 2006 passed onto the federal Court of Appeals on a unanimous voice vote.
The irony of the upcoming confirmation battle is that when Senate Democrats were in the majority in 2013, they used their power to eliminate the ability of the Republican minority to filibuster all judicial slots below the Supreme Court as well as many other political appointees. Senator Merkley was among the most outspoken against maintaining the filibuster, in fact, arguing that it should be eliminated for Supreme Court nominees as well.
Now, with the shoe on the other foot, Merkley, Schumer and their disgruntled band of Senate Democrats are poised to obstruct President Trump’s nominee, in spite of the fact, that the question of who would choose the next Supreme Court justice was a significant factor in his victory.
If they are successful in using only the second filibuster of a Supreme Court nominee in history, the ball will be in Majority Leader McConnell’s court and he will have to choose whether to effectively turn control of the Senate over to Schumer, or finish the job that his predecessor Harry Reid started, and end the filibuster altogether.
The nation is divided. The Senate Democrats have proven a willingness to play hardball to win no matter the cost over the past four years. The Supreme Court confirmation decision may prove to be the most significant Senate battle in more than 200 years, because in the end, the entire way the Senate functions may be changed forever.
Judge Gorsuch deserves better than to be caught in this kind of partisan spin cycle, but he should at least take solace that it would have happened no matter who was chosen as the nominee.
As the decision starts, let’s hope that the Senate minority ceases to act like children deprived of their favorite toy, and start acting like adults.
The author is President of Americans for Limited Government.