Tag Archives: Neil Gorsuch

Get set to watch further politicization of federal judiciary

Now there are “reports” that Anthony Kennedy is considering an end to his judicial career.

The Supreme Court associate justice’s retirement, if it comes next week as some are thinking it might, is going to produce something I suspect the nation’s founders didn’t anticipate when they wrote the U.S. Constitution.

That would be the extreme politicization of the judicial selection process.

Those silly men. Sure, they were smart. They weren’t clairvoyant.

The present-day reality is that the process has become highly political. When did politics play such a key role in selecting these jurists? It’s hard to pinpoint the start of it all. Some might suggest it began with President Reagan’s appointment in 1987 of Robert Bork to succeed Lewis Powell, who had retired. The Senate would reject Bork largely on the basis of his vast record of ultraconservative writings and legal opinions.

Clarence Thomas’s nomination in 1991 by President George H.W. Bush also produced plenty of fireworks, owing to the testimony of Anita Hill, who accused Thomas of sexual harassment and assorted acts of impropriety.

On and one it has gone, through Democratic and Republican administrations ever since.

The founders wrote a provision into the Constitution that allows federal judges to get lifetime appointments. The idea was to remove politics from their legal writings. Indeed, some judges have taken seats on the U.S. Supreme Court with their presidential benefactors expecting them to toe a philosophical line, only to be disappointed when they veer along uncharted judicial trails.

It’s too early to tell whether Justice Neil Gorsuch will fall into that pattern. He was Donald J. Trump’s initial pick for the high court. The president might get to make another appointment quite soon. Then again, maybe not.

Whenever that moment arrives, you can take this to the bank: The next Supreme Court pick is going to ignite a whopper of a political fight if one side of the Senate sees a dramatic shift in the court’s ideological balance.

Something tells me the founders might not have anticipated these judicial nominations would come to this.

One last hope for Justice Gorsuch

I am going to reveal my own bias — once again — but here goes anyway.

Neil Gorsuch is going to become the next U.S. Supreme Court justice on Monday. The U.S. Senate confirmed him in a mostly partisan vote.

Donald Trump promised to select a conservative justice for the court and he delivered on his promise.

Fine. Trump is the president and he has the right to select anyone he wants.

Gorsuch’s testimony before the Senate Judiciary Committee was filled with the usual stuff that court nominees say, which is they cannot comment on issues that might come before the court. His reticence satisfied Senate Republicans and frustrated Senate Democrats.

He did, though, suggest that Roe v. Wade — the landmark 1973 decision that legalized abortion — essentially is “settled law.” He also said the president never asked him if he’d vote to overturn the ruling, adding that had Trump done so, that he (Gorsuch) would “have walked out of the room.”

My hope for the new justice is that he becomes more of an independent thinker than his critics believe he’ll be. There’s plenty of precedent on the Supreme Court for justices becoming something other than the presidents who appoint them had hoped.

President Eisenhower selected Chief Justice Earl Warren and William Brennan, both of whom became liberal stalwarts on the court; President Nixon selected Justice Harry Blackmun, who then wrote the Roe opinion in January 1973; President Ford selected Justice John Paul Stevens, who then joined the liberal ranks on the high court; President George W. Bush selected Chief Justice John Roberts, who then voted to preserve the Affordable Care Act.

No one should seek to predict how the new justice will comport himself on the court. Some, though, have done so. I am not nearly learned enough in matters of law to make such a prediction.

I do have my hope … and my bias that drives it.

Senate sees the end of collegiality

There once was a time when the U.S. Senate could be a place where senators disagreed but remained friends.

I believe those days are over. They perhaps have been gone for a lot longer than I realize. The confirmation battle over Judge Neil Gorsuch closes the deal.

Say goodbye to Senate collegiality.

Battle changes the dynamic

Gorsuch’s confirmation came on a fairly narrow vote. All Republicans voted to seat him on the U.S. Supreme Court; all but three Democrats voted against his confirmation.

Some of us — including yours truly — used to believe the federal judiciary somehow was insulated from partisan politics. Not true. Maybe it’s never been true.

Senate Republicans tossed the filibuster rule into the crapper to get Gorsuch confirmed. The Senate used to require 60 votes to quell a filibuster. Democrats launched a filibuster to block Gorsuch’s confirmation; Republicans answered by invoking the so-called “nuclear option” and changing the rule to allow only a simple majority to end a filibuster.

Democrats are angry that Donald J. Trump got elected president in the first place. Their anger metastasized with Trump’s appointment of Gorsuch after Republicans blocked Barack Obama’s nomination of Merrick Garland to succeed the late Antonin Scalia.

I’m not at all confident that either side is going to find a way toward some common ground — on anything!

I recall a story that former Republican U.S. Rep. Larry Combest once told me about his former boss, the late U.S. Sen. John Tower; Combest served on Tower’s staff.

Tower, a Texas Republican, was a fierce partisan. One day, as Combest recalled it, he and another equally ferocious partisan debater, the late Democrat Hubert Humphrey, were arguing on the Senate floor about some legislation. They were gesturing and shouting and saying some angry things while arguing their points, Combest remembered.

After a lengthy floor debate, the presiding officer gaveled the session closed, Combest said, and Sens. Tower and Humphrey walked toward the middle of the floor, shook hands — and walked out the door with their arms around each other.

My gut tells me those moments are long gone.

End of judicial filibuster? A mixed blessing

I’ve long had a terrible conflict of emotions as it regards the filibuster, a tactic employed in the U.S. Senate designed to stall the progress of legislation … and appointments.

The Senate this week did away with its 60-vote rule to end filibusters. The rule change allowed the confirmation of Judge Neil Gorsuch to the U.S. Supreme Court.

But it’s the filibuster itself that gives me pause.

My own political bias clouds my view of what the Senate did as it regarded Gorsuch’s nomination. Given that the Republican-controlled Senate blocked an earlier high court nomination because a Democratic president had put a name forward to succeed the late Antonin Scalia, I saw some justification in what Senate Democrats sought to do with Gorsuch’s nomination.

But is the filibuster really an essential element of governance? I’ve long questioned it. A filibuster occurs when senators object to an issue before the body. They can filibuster in a number of ways, but the classic method is to hold the floor for hours, days, weeks — however long it takes — to talk about anything under the sun.

The Senate has had some champion filibusterers. I think of the late Wayne Morse from my home state of Oregon and the late Strom Thurmond of South Carolina. Those fellows could bluster seemingly forever on anything in order to talk a bill to death.

We operate our government on the principle of “majority rule.” The word “majority” doesn’t imply “super majority,” which is what the former Senate filibuster rule required. Majority means one vote greater than half. The Senate comprises 100 members; therefore, 51 votes constitute a majority. Shouldn’t that be enough to settle a policy argument on the floor of the Senate?

We elect presidents with a simple majority of the Electoral College. All it takes is 270 electoral votes, out of 538 total, to elect a president. Is there a more important electoral decision to be made than that? We don’t require in the U.S. Constitution a super-majority of electoral votes to choose a president. So, why do senators insist on filibustering and then require 60 votes to end it.

The filibuster seems to be an obstructionist’s tool. As one who believes in “good government,” this activity appears to me to work against that principle.

‘Shining moment’ carries baggage for McConnell

The Hill posted a story online with the headline “McConnell’s shining moment.”

The Senate majority leader, Mitch McConnell, is shining because the body he runs has confirmed Neil Gorsuch to a spot on the U.S. Supreme Court.

Pardon my anger, but the leader isn’t shining. He stands as a scoundrel, a thief who stole the seat from another judge who should have been confirmed in 2016.

McConnell is boasting that the most “consequential” decision he has made was his decision to block Barack Obama’s nominee, Merrick Garland, from testifying before the Senate Judiciary Committee. The consequence would be to block a vote on the Senate floor.

Hours after Justice Antonin Scalia died in early 2016, McConnell made clear his intention to prevent President Obama from filling the spot on the court. Some have praised McConnell for blocking the president. I choose to condemn him.

Politics takes over

Gorsuch’s confirmation today was totally expected. The Senate voted 55-44 to approve his confirmation. He earned his court seat on the basis of a rule change that McConnell orchestrated in which the Senate abandoned its 60-vote rule to end a filibuster. I get that the majority leader was within his rights to change the rule.

What happened in 2016, though, is the much more egregious transgression. McConnell played raw politics with Obama’s nominee. The U.S. Constitution gives the president the power to fill federal judgeships. Barack Obama fulfilled his duty. The Senate also has the right to reject a nominee.

The Senate, though, should have heard from Garland. It should have weighed this man’s credentials. It should have considered his qualifications. It should have received a recommendation from the Judiciary Committee.

And it should have cast an up-down vote on whether to confirm the president’s nominee.

Thanks to the majority leader’s obstruction, none of that was allowed to occur.

And to think that Mitch McConnell has the stones to accuse Democrats of playing politics with Supreme Court picks.  This man, McConnell, has set the standard for politicizing the highest court in America.

Gorsuch’s confirmation isn’t a “shining moment.” It is permanently soiled by political poison.

Senate readies for ‘nuclear’ attack on rules

All this hubbub over whether to deploy the “nuclear option” to get a Supreme Court justice confirmed has my head spinning.

My emotions are terribly mixed.

Here is where we stand:

* The U.S. Senate Committee has recommended that Neil Gorsuch be confirmed to the Supreme Court; the panel voted along partisan lines. Republicans voted “yes,” Democrats voted “no.”

* Democrats are set to filibuster the Gorsuch nomination as payback to their Republican “friends” for blocking an earlier appointment, again on partisan grounds.

* Senate rules require Supreme Court nominees to garner at least 60 votes. Republicans at this moment don’t have enough votes to reach the 60-vote threshold — and break a Democratic filibuster.

* Republicans, thus, are pondering whether to “go nuclear” and change the rules to allow only a simple majority to approve a high court nominee.

Ohhhh, what to do?

We’ve already stipulated that Democratic senators don’t want Gorsuch seated if only because of the steamroll job GOP senators did on Merrick Garland, whom Barack Obama nominated to the court to succeed the late Antonin Scalia.

Why the emotional conflict?

I happen to believe in presidential prerogative. I believe the president’s selection deserves greater consideration than the Senate’s constitutional right to reject an appointment, particularly if the appointee is “well qualified,” as the American Bar Association has determined about Gorsuch.

But my belief in presidential prerogative is tempered a good bit by the outrage I share with Democratic senators over the way Republican senators stonewalled Garland’s nomination, how they played politics by saying the next appointment belonged to “the next president.”

They were as wrong as they could be in denying President Obama the right to select someone, who I feel compelled to add is every bit as qualified to serve on the high court as Neil Gorsuch.

Should the Republican majority throw its weight around once again by engaging in that so-called “nuclear option” and change the rules to suit their own agenda?

Let me think for a moment about that one.

No. They shouldn’t!

Judiciary becomes another political arm

I guess it was naïve of many of us to believe the federal judiciary would be above the partisan politics that stymies the executive and legislative branches of government.

I always thought the founders created a judicial system that would be immune from politics. Those silly men.

Gorsuch gets key endorsements

Neil Gorsuch stands before the U.S. Senate awaiting confirmation to the U.S. Supreme Court. Two Democratic senators — Joe Manchin of West Virginia and Heidi Heitkamp said today they would vote to confirm the judge nominated by Donald J. Trump to the nation’s highest court.

Senate Republicans need eight Democrats to join them to get to the magic number of 60 votes to confirm Gorsuch.

I have admitted this already, but Gorsuch is not my choice to become a high court justice. He is, though, the pick of the president, who has the constitutional authority to make these selections.

My hope would be that Democrats wouldn’t filibuster this nomination. They should save their ammo for when it really counts, such as when a liberal justice leaves the court. Gorsuch is a conservative who would replace the late Antonin Scalia, the iconic justice who died more than a year ago.

I also believe that this is a “stolen” seat that in reality belongs to Merrick Garland, who was selected by former President Barack Obama to succeed Scalia. Senate Republicans played pure politics by refusing to give Garland a hearing and a vote. That is to their everlasting shame.

That, I’m afraid to acknowledge, is how the game is played these days.

Judges have become political animals, just like the men and women who get to appoint and decide whether to confirm them to judicial posts. That’s too bad for the system.

Democrats sharpening their long knives

U.S. Senate Judiciary Committee Democrats are making it plain: They don’t want Judge Neil Gorsuch to take a seat on the U.S. Supreme Court.

Oh, my.

What these folks do not seem to understand — or choose to ignore — is this simple point: Judge Gorsuch’s confirmation to the nation’s highest court will not tilt the court’s ideological balance one tiny bit from where it was when the late Antonin Scalia served on it.

Not one bit. Not one iota.

Scalia, who died a year ago, was a conservative jurist, and an iconic one at that. Gorsuch is a conservative jurist. Yet we hear Democrats, such as Sen. Richard Blumenthal of Connecticut, declare his intention to all he can to block Gorsuch’s confirmation; that includes a “filibuster,” Blumenthal said.

Give me a break, man!

This fight is unwinnable. Gorsuch will need 60 votes in the Senate to be confirmed; if it appears he’ll fall short of the magic number, Senate Majority Leader Mitch McConnell, a Republican, will change the rules to allow a simple majority to confirm Judge Gorsuch.

So, what’s the big deal? Gorsuch at worst will mirror Justice Scalia’s view of the U.S. Constitution.

Democrats need to sharpen their long knives — and then put them back in their scabbards and save them for when it really matters.

Such as when a liberal justice leaves the court. That’s when the court’s ideological balance becomes the defining issue.

Not this time.

‘Ideological balance’ not a SCOTUS issue

Reuters News Agency has declared in a headline that Neil Gorsuch’s selection to the U.S. Supreme Court means the court’s “ideological balance” is at stake.

Excuse me for a moment while I clear my throat.

Cough, cough …

Um, no. It isn’t.

Judge Gorsuch has been tapped by Donald J. Trump to succeed the late Justice Antonin Scalia. As my dear old Dad would say, “It’s six to one, half-dozen to the other.”

Gorsuch is a conservative. So was Scalia. And yet, progressive thinkers are all a-flutter  because Gorsuch, they say, according to Reuters, “that he is a pro-business, social conservative insufficiently independent of the president.”

Do they think Scalia would have been any different had he not died before Trump took office? Do they think Gorsuch is going to somehow become so persuasive in his opinions and writings that he is going to bring some progressive court justices to his side of an argument?

Let’s get a grip here.

Scalia was an iconic figure among judicial conservatives. It’s not yet clear whether Gorsuch will attain that kind of status if he gets confirmed to the Supreme Court.

My advice to Senate Democrats and their progressive allies in the judicial community is this: Save your ammunition for the day one of the high court’s liberal justices takes a hike.

Although I agree fully that Trump never should have been given the chance to replace Scalia. That task should have been fulfilled by his presidential predecessor, Barack Obama, who nominated an equally qualified jurist, Merrick Garland, to take his place on the high court. Senate Republicans played bald-faced politics, declaring that Obama didn’t have the right to appoint someone to the court; that task, they argued, belonged to the next president.

That’s utter horse manure. The GOP’s tactic worked. Trump got elected and now he has appointed a judicial conservative to the court — just as he pledged he would do.

As one who stands foursquare behind presidential prerogative on issues such as this, I recognize that elections have consequences.

One “consequence” of the 2016 election is that Trump has chosen a “well-qualified” jurist — in the words of the American Bar Association — to become the next Supreme Court justice. There is no “ideological balance” to discuss with this selection.

What about the next one? And what if it involves the departure of a liberal justice?

Well, that’s a different matter altogether.

SCOTUS pick gets major boost from ABA

As a firm believer in presidential prerogative, I feel compelled to say that the American Bar Association likely has given Donald J. Trump’s pick for the U.S. Supreme Court the boost he needs to take his seat.

The ABA has declared that U.S. District Judge Neil Gorsuch is “well qualified” to take his seat on the nation’s highest court.

Does this guarantee Gorsuch’s confirmation by the U.S. Senate? No, of course not. The Senate Judiciary Committee has to recommend his approval and the entire Senate has to vote to confirm the judge.

Gorsuch’s nomination is important for a couple of reasons.

First, he would take the seat vacated by the death one year ago of conservative judicial icon Antonin Scalia. The president told us he would select a conservative to the court if he were elected; Trump did what he pledged to do.

Is he my favorite judge? Would I have selected Gorsuch? No. But I am not the president. Neither is anyone else. That title belongs to Donald Trump.

He is qualified, though, to become a member of the Supreme Court.

Second, a Justice Gorsuch would not change the ideological balance on the court — presuming he follows through on his reputation as a “conservative jurist.” The court’s slim conservative majority remains intact with Gorsuch’s confirmation.

“The ABA’s ringing endorsement is no surprise given Judge Gorsuch’s sterling credentials and his distinguished decade-long record on the Tenth Circuit,” Judiciary Committee Chairman Chuck Grassley said. “Former Chairman [Patrick] Leahy and Minority Leader [Chuck] Schumer have called the ABA’s assessment the ‘gold standard’ in evaluating federal judicial nominations. In light of Judge Gorsuch’s impeccable record, it’s hard to imagine any other result from the ABA’s consideration.”

Every reader of this blog knows how much I detest Donald J. Trump. I cannot stand the sound of his voice, nor can I stand to watch him perform the duties of the office for which I continue to believe he is unfit to occupy. High Plains Blogger readers also know that I was enraged at Senate Republicans’ decision to block Barack Obama’s selection of Merrick Garland to fill the vacant Supreme Court seat.

But Donald Trump is the president of the United States. Just as I have argued for decades in favor of presidential prerogative, I also believe he has made a predictable choice to fill the nation’s high court.

Judge Gorsuch also is well-qualified. If the ABA provides such a decision, that’s good enough for me.

Now, as for Senate critics of Gorsuch, my advice would be for them to save their ammo for the fight that is sure to erupt when one of the liberal justices leaves the Supreme Court.