What To Do With the Supreme Court

Democrats are wondering whether and how fiercely to oppose Donald Trump’ nomination of Judge Neil Gorsuch to the Supreme Court. Some say he is too far to the right; others say it is revenge time for Republican blockage of Merritt Garland who was nominated by Obama but never given even a hearing before the Republican controlled Senate. As Rachel Maddow pointed out, approval of Supreme Court nominees has become particularly contentious since Gore v. Bush, but it goes back to the denial of a seat to Robert Bork, who was extremely well qualified, a quality which Trump pointed out about his own nominee last night. So the debate is about Senate politics. Should the Democrats oppose the nomination and possibly get the Republicans to change the rules, which is the so called “Nuclear Option” because it would mean that so many of the customs by which the Senate operates would no longer be respected by one side or another and the Senate might well as a consequence grind to a halt.



The real question is whether the competence of which Trump spoke matters at all. Everybody agrees that Clarence Thomas is not a distinguished jurist but he has been a reliable conservative vote and will continue to be so for many years to come. People make much of the craftsmanship in the opinions of the present nominee, but what difference does that make when we know that he consistently takes the conservative side of whatever issue confronts him: on gun control, on the use of national park lands, on religious issues. So it is fair to say that he ponders and ponders and crafts and crafts and comes up with a decision that suits his ideological predilections, and so I can say all that brainpower has been used to develop an excuse, not to find his way to a decision. An independent jurist might be defined as one who sometimes votes differently than the way you expect because of the particular logic that arises over a particular issue. But that is not the case here, nor is it with most justices, all of whom are pretty predictable as liberal or conservative or somewhere in between. Yes, there are some exceptions, notably Earl Warren and David Souter, but, all in all, Supreme Court Justices are what they seem to be, and have not committed at their confirmation hearings to be anything else, all working to sound responsible and provide as little substance or theory as possible. They learned their lesson from Judge Bork, who had gone out of his way to explain himself and did so quite well, even though that did not please Joe Biden, then the head of the Judiciary Committee, who I thought had been clearly bested in the give and take and who then decided to vote against Bork because he said Bork acted as if the law were a game. Well, it is an intellectual game of sorts and that is what Bork had offered himself up for. At this point in our judicial history, there is no point in holding hearings at all. A Senator can vote up or down on the basis of the overall previous record of the candidate when that candidate served on the federal bench. No President seems interested in taking a chance on someone with a political or other now unusual background.

I have a suggestion based on the plot of an episode of “The West Wing”, where a very old Chief Justice is asked to resign so that President Bartlet can appoint two justices when only a single seat had become available, and picks a Ruth Bader Ginsburg type along with a Antonin Scalia type. In the real world, that might be worked this way. The Democrats will support Gorsuch if an announcement is made by Trump at a joint press conference with Chuck Schumer that he will appoint one of three names that Chuck Schumer presents to the President. That way, one conservative would be followed by one liberal for as long as the political impasse in this country remains. For a while, that was how Colombia chose its Presidents, two parties, one liberal and one conservative, taking turns in office, each for one term. But this solution probably won’t work here in the United States because nobody trusts that Trump would keep his word or that Schumer would present candidates at all acceptable to the Administration. So the likely thing to happen is that McConnell will be forced to go nuclear and we don’t know what that will do to Senate procedure in many areas beyond the question of confirmation, the Senate so reliant on its customs just to get the business of the day done. And that really does bring us into a no man’s land where it will be unclear whether the Senate can get anything done, including the routine business that keeps the country running. Donald Trump is on his way to becoming just the sort of revolutionary President his opponents thought he would be because, right out of the box, he had not thought through the ramifications of a Supreme Court appointment, given the recent past, and so tried to figure out a way through those difficulties. Trump thinks Gorsuch is perfect for the job and that is all there is to it. This lack of circumspection does not bode well for what will happen when the first significant foreign policy crisis emerges. Maybe his Cabinet will be able to control him.