Friday 3 February 2017

The Supreme Court might just be the biggest loser in the battle over Gorsuch

Dr. Emma Long takes us through the political ramifications of Trump's decision to nominate Neil Gorsuch as Supreme Court Justice.

Candidate Trump promised to nominate to the US Supreme Court a conservative jurist who would follow in the footsteps of his or her predecessor, Antonin Scalia.  Someone who would adhere to a strict construction of the Constitution, an originalist understanding of that document’s meaning, and a generally conservative judge.  In Judge Neil M. Gorsuch, currently sitting on the Court of Appeals for the 10th Circuit, that is exactly who President Trump nominated. 

Given other events of the past week which have seen Trump’s executive orders go further than even many conservative Republicans had predicted, the nomination of Gorsuch was perhaps the most moderate, least surprising development. His name had been on the second list of potential nominees released by the Trump campaign last fall, he had emerged as one of the leading candidates in the last few weeks and as the frontrunner in the last few days.

His record is largely unsurprising for a man nominated to the nation’s highest court by a Republican president.  His legal career, suggests a friendliness to business, he has been supportive of claims of religious freedom from conservative Christians, supported the death penalty, opposed assisted suicide and euthanasia laws, and written of the “inviolability” of human life which suggests a tough stance on abortion. 

So Gorsuch does not fit with most liberals’ image of the ideal Supreme Court Justice.  But he appears eminently qualified for the role.  He has a law degree from Harvard and a PhD from Oxford, which he attended as a Marshall scholar.  He clerked for Supreme Court Justices Byron White and Anthony Kennedy, worked on corporate law in private practice and was appointed to the 10th Circuit in 2006 by President George W. Bush. As Trump noted in his announcement, Gorsuch has “outstanding legal skills, a brilliant mind … and has earned bipartisan support.” 

And that looks increasingly likely to be the problem.  Even before Tuesday’s announcement, Senate Democrats had indicated that they would be likely to oppose a Trump nominee.  Still smarting from Republicans’ refusal to hold hearings on Judge Merrick Garland, President Obama’s nominee to the Court, Democrats are now threatening to employ the same tactics.  If they do, not only are they likely to lose, but the battle could cause long term damage to the Court itself, because their opposition is not based on Gorsuch’s qualifications for the role but his political and legal views.

The Supreme Court is a legal institution, first and foremost; its members are judges.  It is also a political institution: its place as one of three co-equal branches of the American government and its role in interpreting controversial aspects of the Constitution mean it cannot avoid being so.  But too often in recent years politicians and commentators have discussed the Court in explicitly partisan terms.  The effect has been to imply, and sometimes to overtly state, that the Court’s members made decisions as Republicans or Democrats, not as judges whose political and legal worldviews might lead them to support one party over another.  From here it’s a very short step to argue, as Ted Cruz and other Republicans did last year, that they could not allow the Court to be “lost” or “taken over” by a liberal majority.

But the Court is not a branch to be “captured” by one party or another.  And the Senate’s job is not to assess a nominee’s qualifications based on his political views but upon his ability to undertake the role to which he has been nominated.  This has too often been forgotten in recent years.  Since the 1973 ruling in Roe v. Wade which protected, within limits, women’s right to terminate a pregnancy, potential nominees have been judged, in part, on their views on particular “hot button” issues, particularly abortion, the death penalty, and gun control.  This process arguably reached its nadir in the 1987 hearings on President Reagan’s nomination of Robert Bork to the Court.  Intellectually capable, Bork was rejected because his politics were considered unacceptably conservative for the Court at that time.  In 2006, Justice Samuel Alito found his nomination hearings more challenging than Chief Justice John Roberts just a few months earlier, in part because he was a legal conservative nominated to a seat held by Justice Sandra Day O’Connor, considered to be at the Court’s ideological centre.  The process has been a gradual one, and Republicans and Democrats have both played their part, but it has been corrosive nonetheless. 

The consequences of this gradual politicization of the Court have become clear in recent years.  Traditionally enjoying greater public approval than either the president or Congress, the Court has seen its approval ratings plummet. A July 2016 Gallup poll showed public approval of the Court at 42%, well below approval ratings of the 1990s.  The politicization of the Court also threatens the Court’s legitimacy.  Unelected and serving life terms, with no power except their institutional role and persuasion to convince the country to abide by their decisions, historically the legitimacy of the Court and the Justices has rested on the idea that the Court upholds the rule of law, that there is some distance between interpreting the law and making political decisions.  If Americans come to believe that politics is the only deciding factor in the Court’s decision-making, the Court’s legitimacy, and thus its ability to compel compliance, may weaken.  If that happens, all Americans lose, regardless of party affiliation.

Democrats have every right to feel aggrieved about Republicans’ tactics over Garland, and to rue the loss of the chance to appoint a Justice of their choice to the Court.  But both parties need to think carefully about how they handle Gorsuch’s nomination if they want to avoid causing irreparable damage to the Court.  Republicans would do well to show some humility: winning the presidency does not lessen the taint of their tactics in 2016.  Senate Majority Leader Mitch McConnell’s criticism of Democrats for proposing similar tactics to his in opposing Trump’s nominee smacks or rank hypocrisy.  Democrats, for their part, might well have to accept that while they don’t like Gorsuch’s politics, he is qualified to be on the Court.  In losing the battle, they might just help protect and preserve the Court for the future.

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