Bork, Garland and Gorsuch: Bombs Away?

Nebraska’s junior senator, Ben Sasse, a Republican but one of the few grown-ups to be found in Washington, headed over to the Supreme Court following the announcement that Tenth Circuit Judge Neil Gorsuch was nominated to the Supreme Court to fill the hole where Nino Scalia once sat. It was, unsurprisingly, the stuff of the funny papers.


No matter who was nominated, there was a blank space to fill in the name. That doesn’t leave much to discuss, and characterizes the fringe elements of politics well. There is no question that Judge Gorsuch is well qualified to served as an associate justice, and efforts to smear him will fail because no knowledgeable person will take them seriously. Sure, passionate advocates will spew, because fill-in-the-blanks, but they will do that regardless.

Is Gorsuch the dream justice for criminal defense? Of course not, but then, neither was Sotomayor, Kagan or, for that matter, the Notorious RBG, who is adored when she’s not being hated. But nobody suspected that William O. Douglas or Thurgood Marshall would be resurrected to be Nino’s replacement, so no tears are being shed.

But the fact that Gorsuch is exceptionally qualified doesn’t answer questions. D.C. Circuit Judge Merrick Garland was exceptionally well qualified too. And, if we’re to be intellectually honest, so was then-D.C. Circuit Judge Robert Bork. The derailing of Bork’s nomination isn’t mentioned merely as a hat tip to fairness or a historical footnote. His rejection by the Senate, a rebuff to President Reagan, was a tactical shift in the politics of judicial nominations.

The question was never whether Bork was qualified. He was, by all accounts, a brilliant man. The problem was that his views were too extreme for the Democratic Senate, the Republican president’s views notwithstanding, and so they “Borked” him, turning his name into a verb. Whether this was a good or bad thing isn’t the point, at this stage. The point is that the confirmation process went down a politicized path from which there was no turning back.

Or was there?

There was no doubt that Judge Garland, like Bork, was eminently qualified, and a smart tactical choice by President Obama. He was a moderate judge, respected by all, even if his record on criminal cases was more appropriate for a conservative Republican nominee. And there is no doubt that the Republican Senate did him wrong. Despite imaginative efforts, there was no mechanism by which his nomination could be saved. No doubt Judge Garland was fully aware he was a sacrificial lamb going in, even if others refuse to see it. It’s unimaginable that his eyes are as clouded by passion as his supporters’.

So now there’s a new warm body to be poked, prodded and, by some, hated in their fill-in-the-blanks kinda way. The New York Times, despite Obama’s Acting Solicitor General Neal Katyal’s op-ed commending Judge Gorsuch’s nomination, argues its obvious view, that Gorsuch will sit in a stolen seat.

In normal times, Judge Gorsuch — a widely respected and, at 49, relatively young judge with a reliably conservative voting record — would be an obvious choice for a Republican president.

These are not normal times.

The seat Judge Gorsuch hopes to sit in should have been filled, months ago, by Merrick Garland, the chief judge of the Court of Appeals for the District of Columbia Circuit, whom President Barack Obama nominatedto the court last March. Judge Garland, a former federal prosecutor and 20-year veteran of the nation’s most important federal appeals court, is both more moderate and more qualified than Judge Gorsuch.

Whether Judge Garland is more moderate than Judge Gorsuch is a matter of what one focuses on, and the presumptuousness of believing you know what runs through a judge’s mind. Note that the Times lauds Garland for being a federal prosecutor? A curious argument to make in his favor.

As for “more qualified,” that’s silly.

Despite the fact that no one who doesn’t enjoy mad libs can raise any real reason to challenge Judge Gorsuch, the lingering issue is the stolen seat. Minority leader Chuck Schumer is reported to have already stated that Gorsuch will need 60 to be confirmed.

Few Democrats came out Tuesday night promising to block President Donald Trump’s Supreme Court nominee, but Senate Minority Leader Chuck Schumer (D-N.Y.) declared in a skeptical statement that his members would insist Neil Gorsuch secure 60 votes to be confirmed ― the number to needed break a filibuster.

That may not appease the angry townsfolk carrying torches and pitchforks, who demand that Democrats pay back the Republicans for their treatment of Garland.

Progressives have demanded that Schumer and Democrats react in kind, and roadblock any Trump nominee.

Of course, they can also demand that the laws of physics cease to function, but it ain’t gonna happen. There is a possibility that Dems will break from the party line and support Judge Gorsuch, and even if they don’t, the Republicans can eliminate the filibuster.

The only choice before Senate Democrats is whether to allow Republicans to claim their reward the easy way or the hard way. They should choose the hard way.

The Senate rules currently allow a filibuster of Supreme Court nominees (but not nominees for other judicial nominations). But the majority can change that rule at its whim. Even before Gorsuch’s nomination, McConnell already indicated that he does not respect Democrats’ right to filibuster, and that he would eliminate the filibuster for Supreme Court nominations if one is used.

The argument from the Democratic side is to save the filibuster, since they really don’t have a chance of making it work, and aren’t actually opposed to Judge Gorsuch despite the mad-lib protesters.

Democrats are reportedly tempted to abandon the filibuster, so that it remains in place for a future Court fight. “Preserving the filibuster now could give Democrats more leverage in the future,” some Democrats tell CNN. But this is fantastical. There is no “leverage” gained by a weapon one’s opponent can disarm at will. The Supreme Court filibuster is like a pair of handcuffs in which the handcuffed person is holding a key.

The leverage argument only makes sense if there is some level of mutual respect between the senators, knowing that sides will switch and today’s majority will be tomorrow’s minority.

All of this raises the question of whether this is how America wants its deliberative body to work. Is hyper-partisanship good for a nation, or is it just the way to play tit-for-tat, America’s newest favorite game. It’s not fair that the Republicans “get away” with what they did to Judge Garland. It was wrong, and frankly disagraceful. The arguments made were nonsensical, though nobody seems particularly put off by their own team’s absurd argument.

So is it Hammurabi’s Code, scorched earth, drop the nukes? Or is there any way to get back to a functional legislative branch (that will, coincidentally, facilitate a better functioning judicial branch)? And given the current president, would this not be a really good time for the rest of government to work? No matter how good it might feel to some to Bork Judge Gorsuch, this might be a really good time to put the welfare of the nation first.

16 thoughts on “Bork, Garland and Gorsuch: Bombs Away?

  1. wilbur

    At some point, the Democratic Senators facing the voters in 2018 in states won by Trump are likely to cast some votes breaking the party line. The vote on Gorsuch may be the first.

    1. SHG Post author

      While the media (and certainly social media) creates the appearance that America hates Trump, experience on the ground may well differ. Senators get elected by their constituents, not twitter followers.

  2. jaf005

    I’m maniacally refreshing both SJ and FaultLines to see in Judge Kopf adds his perspective on both the process and the nominee

    1. SHG Post author

      That explains the million pageviews already today. But do not suspect Judge Kopf will have anything controversial to say. He’s on trial in North Platte, and it takes forever for the smoke signals to make it here.

      1. Richard G. Kopf

        SHG, signal faint but received. It is time for the US Senate to act like the greatest deliberative body in the world. In sane world Judge G would be confirmed with 90 plus votes in less than 30 days.

        All the best.

        RGK

        1. Lurking Con Law Prof

          In a sane world, Merrick Garland would have been confirmed with 90 plus votes in less than 30 days. That doesn’t mean Dems should necessarily play tit for tat, but it does show that we haven’t been in a sane world for quite some time.

  3. Hunting Guy

    I’m not a lawyer.

    There are two things that bother me about Judge Goesuch.

    He’s a Harvard product. That means he has the same background as the others on the SC. I’d like someone from a different law school. Are there no good law schools in Texas, Arizona, Idaho, or somewhere else in the U.S? In other words, how about some real diversity on the court?

    Plus, I’d like someone with real experience as a defense attorney. From my layman viewpoint the SC seems to give too much weight and protection to the police.

  4. Marty D.

    Smoke signals? Really, Scott,as a Nebraska resident I feel the the telegraph lines are amazing technology. Also the Pony Express works well. Perhaps we willl have an Earl Warren reincarnation one day. You need a skidsteer.

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