President Trump has nominated Neil Gorsuch to be the next Associate Justice of the Supreme Court. This event is unique and unprecedented in American history, but one can say that about most anything that comes out of the Oval Office these days. However, that has barely anything to do with Trump. Rather, it was the Republican Party, specifically those in the Senate, that brought this travesty of American government to fruition.
I had never heard of Neil Gorsuch before I saw the headlines announcing his nomination. I didn’t watch the primetime announcement, nor did I read a profile of the names on Trump’s shortlist beforehand. Reporting has painted Gorsuch as a ready replacement for Antonin Scalia. He seems to share similar ideology, so the thinking is that he will return the court to the right wing status quo it had before Scalia’s death. For all we know, Gorcush will be a fine addition to the court. Or, he could be a disaster. We won’t know for sure unless he is seated.
What makes his nomination a travesty is that the pick was stolen from President Obama. Republican obstruction of Obama’s agenda was a core feature of Republican policy after they secured Congress in the 2010 midterms. The amount of obstruction President Obama faced from Congress was unprecedented, denying him at seemingly every step. Blocking his Supreme Court nomination, Merrick Garland, was the ultimate climax of that obstructionism. In an unprecedented move, the Senate refused to even consider Merrick Garland for the court, abrogating their duties as laid out in the Constitution. It was an extraordinary tactic, and it worked.
The reasons were flimsy. Republicans claimed there was precedent for denying a sitting president his pick in an election year, but it was a self-serving argument. Had the Republicans been true to the spirit and the letter of the Constitution, instead of manipulating it for this victory, then Trump would not have had this pick.
The Republicans, in falsely claiming precedent, have instead created a dangerous one. They have proven that there is a glitch in the nominating process for the Supreme Court. They have shown that a Senate majority, if it so chooses, can refuse to consider any of a president’s nominations. This means they can exercise power over the Executive and Judicial branches — indeed, the power to cripple them — that the founders probably did not consider. For short-term gain, say, in opposing a president from another party, this may appear to be ideal. But the long-term implications have the potential to be disastrous.
If, in the future, polarization continues to get worse, as seems likely, we may end up in a position where no seats on federal benches or the Supreme Court ever get filled. Through simple acts on the Republicans’ part, they have created a viable strategy for destroying the federal court system by denying it judges and justices. Although this is a Republican tactic, what incentives do the Democrats have to not mirror it? How can the Democrats be expected to take the moral high ground on the courts and refuse to do the same thing? All that would do is continue to reward the Republicans for their bad behavior, while at the same time packing the courts with nominees whom Democrats find objectionable.
There will be a fight over Gorsuch, as there should be. The Democrats should use every dirty trick at their disposal to deny Gorsuch a seat on the Supreme Court. They should force the Republicans to pass legislation that either closes the non-consideration loophole, or eliminates the filibuster for Supreme Court picks.
It was the Republicans that decided to use the grey areas of the Constitution to steal a Supreme Court pick from a sitting president. They should be the ones that have to deal with the blowback from that now that they are in power. They could very well get their man on the Supreme Court, but if the Democrats use their turn at obstructionism wisely, it could also result in new, codified rules that make sure a Constitutional crisis like this doesn’t occur again.