CLEVELAND — Neil M. Gorsuch walked into the U.S. Supreme Court building Monday morning, raised his right hand, and repeated the oath spoken by Chief Justice John G. Roberts — becoming the 113th justice in the country’s history.
Even for many of us who are delighted with his ascension to the bench, it was a melancholy moment. For Gorsuch or against him, it should be clear to all that the highest court in the land will never be the same.
It wasn’t so long ago that the confirmation of a Supreme Court justice was a stately exercise in consensus and compromise, with a general bipartisan inclination to confirm the president’s choice. But in the wake of the bruising Senate confirmation battle over Gorsuch, future debates seem destined to devolve into partisan fights to the death – ultimately won by whichever party happens to hold even a bare Senate majority.
A look back at the confirmation vote for Antonin Scalia, the justice whom Gorsuch is succeeding and with whom Gorsuch is said to have the most in common, is instructive:
In 1986, the Senate confirmed Scalia unanimously, 97-0. But here in 2017, partisan politics have overtaken the confirmation process so firmly that Scalia’s alter ego faced rejection via a Democratic filibuster. It was only after the GOP majority exercised the “nuclear option,” changing the Senate rules for breaking a filibuster from 60 votes down to a simple majority, that he won confirmation by a 54-45 margin.
This is a man, remember — widely respected for his knowledge and demeanor – whom the Senate unanimously confirmed only 10 years ago for a seat on the 10th U.S. Circuit Court of Appeals.
What does that mean for the future of the Supreme Court?
Likely, that when the presidency and the Senate are controlled by the same party, there will be no reason for either to consider a nominee who will be acceptable to the other side.
If a judge like Neil Gorsuch cannot be easily confirmed in a bipartisan voice vote, why bother trying to select a nominee who could win approval from a broad range of senators? Why not just nominate a predictable ideologue and be done with it?
If liberals think Gorsuch is too conservative, wait till they get a load of the next nominee President Donald Trump offers up.
The inevitable resulting lack of open-mindedness and collegiality will be bad for the court, and worse for the country.
WHO STARTED IT? The answer to that likely depends on which side of the aisle you occupy.
Liberals point to Senate Majority Leader Mitch McConnell and the “nuclear option.” But my vote goes back a little further — to the savaging of Robert Bork, whose confirmation fight came only a year after Scalia’s unanimous thumbs-up.
The Democrats used their Senate majority and a dishonest campaign of character assassination to deny Bork his deserved spot on the court, then unanimously confirmed his replacement, Anthony Kennedy, who was seen as (and turned out to be) a more moderate choice.
In 1991 it was Clarence Thomas’ turn to go through the liberal blender before being confirmed by a 52-48 vote. And in early 2006, conservative nominee Samuel Alito weathered a threatened Democratic filibuster, led in part by Sen. Barack Obama, before being confirmed by another sub-60 vote margin, 58-42.
Significantly, Republicans did not pay the Democrats back in their own coin. It would be hard to imagine a more predictably liberal justice than Ruth Bader Ginsburg; nevertheless, Bill Clinton’s nominee sailed through with a 96-3 confirmation vote in 1993. Three subsequent liberal nominees also were routinely confirmed.
This argument might strike you as overly partisan. Perhaps it is. But the fact remains that three of the four conservatives (Roberts being the only exception) on today’s court had to claw their way onto the bench with fewer than 60 confirming votes, while all four liberals were confirmed easily in a filibuster-proof bipartisan statement of support.
The “Nuclear Option:” It is humorous to listen to the Democrats pontificating about how McConnell and the GOP distorted the system.
“When history weighs what happened, the responsibility for changing the rules will fall on the Republicans’ and Leader McConnell’s shoulders,” said Minority Leader Chuck Schumer.
No … the rules were changed by the Democrats in 2013, when they reduced the filibuster threshold for confirmation of the president’s executive office and judicial appointments in all cases but the Supreme Court. What would Schumer have had McConnell do … wait until the next Democratic majority found it convenient to change the rules for a Supreme Court nominee also?
Once again: They started it.
The “Stolen Seat:” That’s the term liberals use to describe Gorsuch’s seat. The New York Times doesn’t even bother to put quote marks around it.
But let’s remember that when McConnell refused to consider Obama’s nomination of Merrick Garland last year, most of us thought that the person making the next nomination would be Hillary Clinton. McConnell put the decision squarely in the hands of the American people: Whom do you want picking the next Supreme Court Justice?
The people chose Donald Trump. Live with it.
Ted Diadiun is a member of the editorial board of cleveland.com and The Plain Dealer.
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