Return to form in the Court
Views 39 | Time to read: 3 minutes | Uploaded: 2 - 7 - 2017 | By: Cameron Lee
Though Senate Democrats are preparing for a war over the nomination of Neil Gorsuch, this may be the wrong time to use the filibuster. Gorsuch is, more or less, the second coming of Justice Antonin Scalia (whose seat he will be filling), but this is precisely why there is no cause for alarm: Gorsuch’s nomination essentially marks a return to the balance of the Roberts court before Scalia’s death.
Admittedly, comparing Gorsuch to Scalia is not very reassuring to those on the left. Scalia is infamous among the progressive wing of the population for his role in Hobby Lobby and his dissent in Obergefell. Like Scalia, it is unlikely that Gorsuch will become a champion for progressive causes. However, it is worth remembering that many progressive rulings (including Obergefell) came down from the Roberts court despite Scalia’s presence, and there were even a rare few cases where Scalia supported liberal causes.
With regards to the Fourth Amendment, Scalia took a strong stance in favor of limiting the power of law enforcement to conduct unwarranted searches, coming down on the side of the rights of citizens in US v. Jones (2012), Kylo v. US, and other cases. It is quite possible that progressives will be similarly surprised by Gorsuch. Of course, this may be wishful thinking; there is no denying that Gorsuch’s record on contraception and stance against the right to die give those of liberal disposition a legitimate cause for concern.
The reality is, Gorsuch is the least objectionable nominee that the left can reasonably expect. Merrick Garland was an excellent, slightly-left-of-center candidate, but that ship has unfortunately sailed. After the circus Mitch McConnell and the Senate Republicans put on over Garland’s nomination, Democrats may be tempted to erect as many barriers between Gorsuch and the Court as possible.
This is not the right time for the left to be vindictive. Republicans currently hold 52 Senate seats; while this is not a large enough majority to break a Democrat filibuster, they only need a raw majority in order to kill the filibuster rule itself. Though some Republicans have expressed a hesitancy to resort to the “nuclear option,” the majority leadership has been clear in stating that they will not take it off the table, and President Trump has asked McConnell to deploy this tactic if necessary.
In light of this looming threat – which would severely restrict the power of the Senate minority – it is in the Democratic Party’s best interest to choose a different hill to die on.
Trump is replacing an originalist justice with a younger version of the same; if and when he nominates a conservative judge to fill Ruth Bader Ginsburg’s seat, progressives will have a reason to panic. Until he is filling a seat held by one of the more liberal justices, or Democrats regain a majority in the Senate, there is no cause for alarm and no justification for risking one of the few tools the minority will be able to use.