Sunday, March 26, 2017
It was morally reprehensible for the Republican-led Congress to oppose Merit Garland, Barack Obama’s nominee to the U.S. Supreme Court… not even willing to bring his nomination out of committee to a vote on the Senate floor. Garland remains the Chief Justice of the United States Court of Appeals for the District of Columbia Circuit, a brilliant Mid-Westerner with a Harvard Law degree. Noted for his fairness and clear thinking, Garland was a pretty much a down-the-middle political thinker, and an ideal choice for the highest court in the land. What happened to his nomination was unconscionable.
But two wrongs do not make a right. While Donald Trump’s current nominee for that Supreme Court vacancy created by the death of Antonin Scalia – Neil Gorsuch (pictured above) – seems to be a Scalia-like “originalist” in judicial opinions, a position unpopular with Democrats, his credentials are otherwise exceptional. A judicial “originalist” generally interprets the words of the Constitution precisely as they applied at the time the relevant constitutional provision was created… not reinterpreted to reflect change, possibly centuries later. This is obviously a very conservative approach, and at 49-years of age, Gorsuch’s appointment to the court would resonate for decades.
Currently a judge on the United States Court of Appeals for the Tenth Circuit (which covers the federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming), Gorsuch has an undergraduate degree from Columbia University, a Harvard Law Juris Doctor degree and an Oxford PhD in law.
His decisions do tend to favor bigger players at the expense of individuals. On March 22nd, for example, he learned that his decision in 2008 case, Thompson R2-J School District v. Luke P., was unanimously reversed by the Supreme Court. The high Court disagreed with his holding that a school district legally abides with the Individuals with Disabilities Education Act as long as it provides an education that “must merely be ‘more than de minimis.’ The Court found that school districts have to provide such minimal support for these children was clearly not the legislative intent; schools had to provide real support and programs.
I personally do not agree with a great many of his opinions and interpretations and would have preferred to see Garland get the actual confirmed appointment, but Gorsuch is probably one of the best, if not the best, of any Trump nominee for any position. And bottom line, the President has an absolute right to nominate whomever he/she chooses to that Court, subject to confirmation by a Senate majority.
Gorsuch’s track record as a judge is such that the American Bar Association (of which I am a member) – an organization that traditionally has battled for equal rights (viewed as a liberal cause) – sees no reason that Gorsuch should not serve on the Supreme Court. The ABA's Standing Committee on the Federal Judiciary rated Gorsuch “well qualified” to serve on the U.S. Supreme Court, its highest rating. In his committee confirmation hearings, he has acquitted himself fairly well. He suggested that had Trump demanded his opinion on reversing Roe vs Wade, he would have “walked out the door.” He reaffirmed his belief in equal rights, and while his conservative bent will indeed be a threat to progressives for a long time, it may be time for some serious Democratic pragmatism.
The Dems can fight against cloture (refusing to give the Senate that 60-vote minimum to bring a matter to vote), but that could easily backfire… provoking the GOP in the Senate to change the rules, removing that 60 vote requirement and letting the confirmation to come to the Senate based on a simple 51 vote majority. This rule change is called the “nuclear option” for a reason. It marginalizes the minority party… and someday that party could be the GOP. It is also a rather clear signal to the Democrats that, one way or another, Gorsuch is going to be confirmed.
Meanwhile, a leaderless Democratic Party is still embracing the platform of the liberal elite – best represented by out-of-touch House Minority Leader Nancy Pelosi (from one of the richest Congressional districts – San Francisco – in the land) – without addressing the concerns of working Americans terrified for their economic future... the constituency that defected from the Democrats and voted for Donald Trump. Think about the states that were predicted for Hillary that Trump carried, Rust Belt states where that working class was particularly slammed: Wisconsin, Michigan, Pennsylvania and Ohio (Ohio was a “maybe” to Hillary predictors). Add Florida and North Carolina to the mix, and you can see where the Democratic Party just didn’t get it.
As the Democrats have now become the party of “no,” a resistance pledged to oppose a rogue and mendacious president and a party-of-the-rich, GOP, congress at every turn, they are hurting their own going-forward credibility. With the inevitability of a Gorsuch confirmation, if there were any pragmatists left in the Democratic Party, you’d think the Dems could do a little horse-trading: getting some support for one of their programs (pick one: climate change and the EPA, modification of provisions to destroy Medicaid, etc., etc.) in exchange for a vote supporting Gorsuch. Wouldn’t hurt if Gorsuch – who is going to be around for a long time – felt somehow he got his appointment with votes from the political center and left in addition to the conservatives that nominated him. And a Republican Congress, having dealt Trump a stinging defeat on healthcare, is not about to double down against this presidential nominee.
I’m Peter Dekom, and it pains me to watch the Dems squabbling among themselves as Rome… er… Washington, D.C… is burning in the background.