For more than a year now, there has been a vacancy on the U.S. Supreme Court.
Justice Antonin Scalia died in February 2015, in the fourth year of President Obamaâ€™s second term in office. Obama had the power to choose a replacement justice, which he did â€” he chose Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit.
But before Garland could join the court, he needed â€śadvice and consentâ€ť from the Senate. Typically, this means holding hearings and then a floor vote. But Republican Majority Leader Mitch McConnell did neither, instead he claimed that the next president should decide, because there was an election going on and the American people deserved input in the process.
This is ridiculous for two reasons. First, the American people already had input in the process; they re-elected Obama in 2012 by a nearly five million vote margin. Second, the Supreme Court is not supposed to be a partisan institution. It shouldnâ€™t matter who appoints the justice; it should only matter if the justice is qualified. Obviously justices have ideological leanings, or else parties wouldnâ€™t care about the nominations. Yet McConnellâ€™s decision made the appointment process inherently more political.
Now, in 2017, President Donald Trump has nominated Neil Gorsuch to fill the empty seat. This time, the Republican-majority Senate has gone forward with the appropriate hearings, and soon, a vote.
Gorsuch, who is a judge on the U.S. Court of Appeals for the Tenth Circuit, is undoubtedly eligible for the position. His rulings have generally leaned conservative, and his hearings were for the most part uncontroversial and satisfactory.
Liberals are trying to smear Gorsuch as pro-corporate, or worry that heâ€™ll restrict womanâ€™s reproductive rights. But those accusations ring hollow without stronger evidence of an agenda, instead of just a judicial philosophy.
In the second round of hearings, Senator Al Franken (D-MN) questioned his dissenting opinion on a case involving a truck driver being fired due to the actions he took in inclement weather. Gorsuchâ€™s dissent may have been callous and â€śabsurd,â€ť as Franken called it, but a few situations like that one arenâ€™t nearly enough to disqualify him.
However, the fact that this seat was â€śstolenâ€ť from President Obamaâ€™s nominee makes many Democrats in Congress and around the country angry, so much so that they want to stop the nomination.
There is a mechanism to do this; Democrats control 48 Senate seats, enough to fail a vote of cloture (which would allow filibustering to continue). Republicans, however, can choose to modify Senate rules, in what people are calling the â€śnuclear option,â€ť that would remove the potential for minority party filibustering on Supreme Court nominees.
In other words, Democrats have very little to work with. Filibustering, which Minority Leader Chuck Schumer and other Democrats have indicated they plan to do, would likely only lead to them losing their privilege and Gorsuch being approved anyway.
Instead of filibustering, Democrats would be wise to let Gorsuch pass through the Senate. They simply canâ€™t win. Instead of fighting a losing battle, they should spend their time worrying about other issues where they have a chance of success.
If senators in liberal states fear theyâ€™d be letting down their progressive supporters, then they donâ€™t have to vote for Gorsuch. There are more than enough Democrats from moderate states that Trump won, like North Dakota, Montana, West Virginia and Missouri, to break a filibuster.
Another concern is that Americans are losing faith in public institutions. This has been occurring for many years, but it has only been exacerbated by the current president. A Supreme Court nomination with bipartisan support would help restore faith in the decision-making of our nonpartisan government branch, the courts.
But what about the Russia investigation? What if President Trump is impeached? An illegitimate president doesnâ€™t deserve to make a lifetime appointment to the court.
Thatâ€™s a good point. But if Trump were to be impeached, Vice President Mike Pence would become president. If Pence were implicated in wrongdoing and had to leave his office as well, House Speaker Paul Ryan would become president. Both men are more ideological than Trump. If either of them didnâ€™t continue with the Gorsuch nomination, their own selection would undoubtedly be even more conservative.
In other words, thereâ€™s going to be a Republican in the White House for at least four years. The sad but true fact is that Democrats cannot prevent Gorsuch from joining the court. Some Republican senators may be wary of the â€śnuclear option,â€ť but given enough time, itâ€™s likely to happen.
Scaliaâ€™s seat may have been stolen, but at the moment, thereâ€™s no way for it to be stolen back.