Eric Davis: Judgeship remains political football

According to the indicators traditionally used to assess judicial nominees, Neil Gorsuch is highly qualified to sit on the United States Supreme Court. He has degrees from Columbia, Harvard and Oxford, a record of scholarly publications, more than 10 years of experience as a federal appeals court judge, and a temperament that is characterized by both intellectual curiosity and unfailingly polite and respectful treatment of his judicial colleagues, as well as lawyers and litigants appearing before his court.
Some senators have said that Gorsuch’s legal views are on the “far right.” I believe that his textualist and originalist approach to interpreting the Constitution, although contested and now held by only a minority of practitioners, is within the broad contemporary mainstream of both academic and judicial discourse.
Regardless, an intense struggle over Gorsuch’s confirmation is likely shaping up, both in the Senate and in the world outside Capitol Hill. For some Democrats, “slow-walking” the Gorsuch nomination is nothing more than payback for the Senate Republicans’ refusal to act on President Obama’s nomination of Judge Merrick Garland to replace the late Supreme Court Justice Antonin Scalia.
If the Republicans refused to act on Garland, this thinking goes, the Democrats should now take advantage of every Senate procedure to avoid taking a final vote on Gorsuch for as long as possible. If Gorsuch is not confirmed by mid-April, he would not be able to participate in any of the Supreme Court’s oral arguments until October at the earliest.
Other Democrats, and perhaps a few Republicans, will be concerned about how Gorsuch might rule on current controversies such as access to abortion and reproductive health services, or limits on campaign spending. As with previous nominees, Gorsuch will likely refuse to discuss issues that might come before the Supreme Court during his confirmation hearings.
Assuming Gorsuch were to rule on most of these issues the same way as Justice Scalia, his appointment would not change the ideological balance on the Supreme Court from where it has been over the past decade: four conservatives, four liberals, and centrist Anthony Kennedy casting the deciding vote in many 5-4 decisions. Much more serious implications for the court’s jurisprudence would arise if either of the two oldest members of the court — Justices Kennedy or Ruth Bader Ginsburg — were to leave the bench and were to be replaced by a conservative appointed by President Trump.
With the White House now occupied by a man whose views on presidential power verge on the extra-constitutional, if not the authoritarian, many senators will want to question Gorsuch about his views on separation of powers, checks and balances, and federalism. During the hearings, he should be prepared to discuss the limits on executive power, and the roles of Congress, the courts, the states, the media, and civil society in checking presidential power.
At this time, I believe that Gorsuch is more likely than not to be confirmed, after extended consideration of his nomination. If more than eight Democrats appear to oppose his confirmation, Senate Majority Leader Mitch McConnell and his Republican members will likely “go nuclear,” removing the ability of a minority of senators to defeat a nomination through the filibuster.
Such an outcome would weaken both the Senate, through taking away one of its important deliberative aspects, and the Supreme Court, by making the high court even more politicized than it has already become. As such, it would put further strain on a political system already stressed by rampant gerrymandering in state and federal legislative elections, political campaigns awash in billions of dollars of often unaccountable funds, and the election of a president who shows disdain for constitutional constraints, traditional principles and norms of organizational behavior, and verifiable facts.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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