The verdict is in. If confirmed, Neil Gorsuch will take the place of the late Antonin Scalia on the Supreme Court. For such an anticipated move, the appointment is unsurprising. Out of an original list of 21 potential candidates, three main contenders had come into focus in recent weeks. Thomas Hardiman, Neil Gorsuch, and William Pryor were considered the front-runners, with Hardiman and Gorsuch more favoured in the preceding days. After Trump took the stage, things moved quickly. Within a few minutes, Gorsuch was named and 15 minutes later, the entire affair was over.
Many liberals view Gorsuch as the best possible outcome of a terrible situation. Being similar to Scalia, Gorsuch is not expected to radically shake up the recent balance of the Court. Currently, the eight sitting justices are evenly divided ideologically. Bader Ginsberg, Breyer, Sotomayor, and Kagan are Democratic appointments, while Roberts, Alito, Kennedy, and Thomas were Republican picks. Scalia, of course, was notoriously conservative.
In terms of the Court's makeup prior to Scalia’s death, the Court already leaned conservative in a 5-4 majority, with Kennedy acting as a swing vote. If Obama had succeeded in getting Merrick Garland on the bench, it would have been the first time since 1968 that the Supreme Court had a majority of Democrat-appointed justices.
Gorsuch, like the other finalists, is young. At 49, Gorsuch, if confirmed, will be the youngest on the bench by far, and the youngest confirmation in over 25 years. He is poised to be on the bench for decades to come, and will have a hand in shaping the Court, and the laws of the United States, for potentially generations to come. The ideological makeup of the Court is important because, while the Supreme Court has the power to expand people’s rights, it also has the ability to restrict them. In 1944, for example, the court upheld the internment of Japanese Americans in camps during the second World War.
Although most people don’t give too much thought to the judicial branch on a regular basis, Supreme Court decisions deeply impact daily life. In the past, Supreme Court decisions have shaped laws regarding emancipation, segregation, abortion, religious liberty, free speech, police powers, political funding, and voting, to name a very few.
If no other seat opens on the Supreme Court during Trump’s administration, the Court will likely continue in a similar fashion as it did before Scalia’s death. Gorsuch is slightly more conservative, but stays true to Scalia’s profile. However, at least two justices, Ruth Bader Ginsburg and Anthony Kennedy, are in their eighties. Ruth Bader Ginsberg is known for her liberal stance, and Kennedy, while a Republican appointment, is moderate. Another liberal justice, Stephen Breyer, is also at the average retirement age of 78. If any of these justices are replaced by more conservative picks, the makeup of the court would alter drastically, resulting in a conservative block that could erase progressive gains made in recent years. If all three of them are replaced by Trump picks, the results could be catastrophic.
Looking forward, the Court is set to hear several important cases this year. One such case has the potential to be the first major ruling on transgender rights; the controversial bathroom question. With a conservative majority and a fresh justice with a bad track record of anti-LGBTQI rulings, reaching a progressive verdict will be difficult. This is especially so given that Gorsuch previously clerked for Kennedy, giving him insight that could be used to influence the swing vote, which could result in a restriction of rights for transgendered individuals.
But Gorsuch is a worrying pick for other reasons, as well. As a Supreme Court justice, Gorsuch is expected to maintain a high standard of judicial independence and impartiality. In a system of checks and balances, judicial independence is critical and justices must be free to decide Constitutional issues without the interference of the executive branch. Despite this, Trump has assured the nation that his pick will vote to overturn Roe v. Wade, a critical case upholding women’s reproductive rights. This kind of blanket assurance raises questions about Gorsuch’s ability to function independently and whether, like so many of Trump’s other ill-advised nominations, he is not just being put in place to act as a Trump puppet. Concerns have also been raised regarding Gorsuch’s religious motivations and apparent favoring of Christianity in his opinions, a dangerous trait for someone sworn to remain impartial and uphold the separation of Church and State.
Within minutes of the announcement, debates began among liberals about how to move forward. Fresh in the minds of many is Obama’s thwarted attempt to place Garland, viewed as a capable judge and solid bi-partisan choice. The refusal of the Senate to take a vote on Garland was seen (rightly) by many as a blatant power play by Republicans trying to hedge their bets on a Republican taking the Presidency, a move not seen since the 1800’s. Should Democrats now attempt to block Gorsuch in retaliation? The underlying question is: he’s bad, but is he bad enough?
Given the uncertainty of the future of the Supreme Court during the Trump administration, caution is warranted. There are certainly ways to block a Supreme Court justice nominee. Democrats could filibuster the vote, for example. If they do that, however, Republicans are likely to fight back, and may go as far as changing Senate rules to defeat the filibuster, a process known as “nuking”, which lowers the number of votes needed for confirmation from 60 to 51. Trump has already indicated that he expects the nuclear option to be used if Democrats attempt to fight his nomination. Once the process is nuked, Democrats won’t be able to block Trump’s pick, as Republicans currently hold 52 seats.
Trump is already butting heads with the Judicial branch following the refusal of several judges to follow Trump’s Muslim Ban and if there is one thing Trump is known for (aside from his child-sized hands), it’s that he tends to target and control those who oppose him. If Democrats attempt to block Gorsuch, it could lead to a bitter battle for control of the Supreme Court and could weaken the Democrat’s ability to filibuster a future nomination, an undoubtedly more important seat.
As tempting as it is to react swiftly and strongly against a move that is clearly just the latest in a series of infuriating and astonishingly bad choices made by Trump, the future of the Court is too uncertain to risk going in hotheaded. The effects could easily end up being more harmful and long-lasting than anticipated, setting Democrats up for future failure on the mere hope of a temporary win. It’s not worth it. There are so many battles that need to be fought, but right now, the Supreme Court nomination is not one of them.
Published Date: Feb 02, 2017 11:42 am | Updated Date: Feb 02, 2017 11:42 am