Robert Meyer
"Nuclear option" not really so explosive
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By Robert Meyer
April 17, 2017

Neal Gorsuch has been approved by majority vote to fill the vacant seat for the ninth Justice for the SCOTUS. His confirmation was by a 54-45 margin. Much has and will continue to be made out of Senate leadership enacting the so-called "nuclear option," which allows for candidates to be approved with less than the super majority of 60 votes.

But the idea that this action is "historic" is a complete farce. Two sitting SCOTUS members Clarence Thomas (52-48 in 1991) and Samuel Alito (58-42 in 2006), were added to the court with "yeah" votes accumulating to less than 60.

Supreme Court nominations have become completely ideological since the rejection of Robert Bork in 1987, when qualification for the SCOTUS became based on ideological witch hunts rather than actual competency and legal experience.

The Democratic Party has been by far the aggressor is this process, with Republicans only beginning to show interest in resisting rubber stamp approvals of presidential nominations during the Obama administration.

Critics often point to the rejection of Abe Fortas as Chief Justice in 1968, as an example of a Republican filibuster drawing first blood. But Fortas was actually doomed by some Democrats voting against his nomination based on ethical concerns. Had the Democrats voted for Fortas with the same accord they voted against Gorsuch, he might have won the nomination.

At least two nominees by Republican presidents, John Paul Stevens under President Gerald Ford and David Souter under President George H.W. Bush were reliable members on the liberal wing of the court. Souter received nearly unanimous approval while Stevens didn't have even one dissenting vote. You have to go back to the Kennedy Administration, with the nomination of Byron White, to find any Democrat who nominated a conservative judge. White is famous for remarking that the Roe v. Wade decision amounted to manufactoring a right out of thin air. On the other hand, Democrats never seem to make the mistake of unwittingly nominating a judge who later refuses to carry their ideological water.

The Democrats in the Senate were upset about the Republicans blocking a vote on Merrick Garland last year, so they filibustered Gorsuch. Each party did what they felt they had to do, and each exercised their constitutional prerogatives. While I don't particularly like the acrimony, I am comfortable with the outcome. You have to let Democratic leadership go through the motions of appeasing their base. Sound and fury signifying nothing.

That brings us to Retired Senator Harry Reid and current Minority Leader Chuck Schumer. They are the victims of the ultimate "what comes around goes around" fulfillment. Reid happily changed Senate rules to permit lower court nominations to be approved with less than a 60 vote super majority. Schumer was the guy who originally said that a president should not nominate a candidate for SCOTUS in his final year of office.

When it comes to the SCOTUS there is no détente. During the German assault on England during the darkest days of WWII, Winston Churchill reminded British citizens that the Battle of Britain would be a struggle to preserve Christian civilization. The battle over the ideological positioning of the SCOTUS is no less a battle to thwart the destruction of our culture. Given that urgency, it is no surprise that many people see the Trump election and his SCOTUS pick as a godsend.

Looking at it a different way, we might ask why so much political capital was expended on opposing the Gorsuch nomination? After all, even if Gorsuch can fill the shoes of Antonin Scalia, the ideological balance of the court is no more tilted toward originalism than it was before Scalia died. Liberals were able to uphold some watershed changes even with that composition of the court. Interestingly enough, Scalia was approved by the Senate in 1986 by a vote of 98-0. It does make you wonder what might have been if Robert Bork had joined him the following year rather than Anthony Kennedy.

In the final analysis the end result now mirrors the observation made by Obama in the early stages of his tenure, when he declared that "elections have consequences."

© Robert Meyer

 

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Robert Meyer

Robert Meyer is a hardy soul who hails from the Cheesehead country of the upper midwest... (more)

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