The conservative judge could shape the country for a generation. No wonder the Supreme Court nomination process has become a battleground.
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In his first two weeks in office, President Donald Trump has governed like a cable news junkie who's surrounded himself with ideologues, issuing sometimes vague and sloppily worded executive orders, beefing with the media, and pushing forward policies that stirred up dissent and unease within the federal government. His executive order banning (at least temporarily) all refugees and citizens of seven Muslim-majority countries from entering the US is being challenged in court, and the lasting results of several of his other actions remains to be seen—so the most important, enduring move of his presidency can probably be said to have happened on Tuesday night, when he announced he was nominating Neil Gorsuch to the Supreme Court.
The nomination itself was steeped in the sort of ratings-maximizing showbiz moves Trump favors—he announced he would do the announcing at 8 PM EST (primetime, of course), then said he was bringing two finalists to Washington, DC, in advance of the nomination. This was building suspense where there really didn't need to be any—everyone already knew this pick was hugely important, since it would break a 4–4 tie between Democratic- and Republican-appointed Supreme Court justices. Before the election, many conservatives said that they would vote for Trump solely to keep the country's highest court out of liberal hands; whatever happens in the next four years, they got their wish on Tuesday.
Even most liberals agree that Gorsuch is qualified for a spot on the highest court. But his qualifications, and even to an extent his personal beliefs, are almost beside the point. In recent years, the Supreme Court has become not so much politicized as weaponized in the culture wars over issues like gay marriage, guns, and abortion, and both the right and the left see him not so much as an individual but as part of a five-justice arsenal poised to make America as a whole more like its red states.
Putting Trump aside, for once, Gorsuch is the sort of judge that any Republican president would have nominated—Ivy League background, a set of beliefs that closely mirror those of Antonin Scalia (the justice he would be replacing), and a tendency to side with Christians who say the government is trampling on their rights. He ruled in favor of an employer who said Obamacare's mandate to provide health insurance that included contraception to their employees in the famous Hobby Lobby case, and dissented from a Tenth Circuit decision against the Little Sisters of the Poor, a Catholic organization that similarly said Obamacare's contraception requirements violated their beliefs. He's anti-euthanasia, generally in favor of strong protections for those accused of crimes, not particularly anti-death penalty—all positions that Scalia held as well. Even better, from conservatives' point of view, he's only 49, meaning he likely has a long Supreme Court career in front of him.
Also like Scalia (and other conservative judges), Gorsuch is fond of interpreting the Constitution as literally as possible, a position that often puts him at odds with progressives. (The Founding Fathers failed to make any mention of abortion or LGBTQ rights, issues that weren't at the front of their minds.) This reverence for the Constitution is a noble and high-minded principal, but the Constitution is often not so much a rulebook as a battlefield. Both sides of any controversial issue can find textual justification for their positions, and there is enough ambiguity in certain constitutional phrases ("cruel and unusual punishment," "a well regulated militia") to fuel centuries of arguments.
In a 2005 essay referenced recently by the Guardian, Gorsuch sneered at liberals' attempts to use the courts to advance "their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education." But of course conservatives use the courts in similar ways. It was a right-leaning lawyer's lawsuit that led the Supreme Court to discover in the Constitution the right to own a handgun, and a deep-red county's suit that resulted in a key part of the Voting Rights Act being overturned. (Scalia was on the side of the majority both times.) Conservatives have challenged several provisions of the Affordable Care Act in court, fought Barack Obama's executive orders that granted protection from deportation to some undocumented immigrants, and sued to protect the ability of businesses to discriminate against LGBTQ people.
The idea that judges are supposed to be impartial callers of "balls and strikes," to quote Chief Justice John Roberts, is often invoked but difficult to put into practice when every major piece of legislation or executive order comes before the court. (Roberts himself cast a deciding vote in upholding Obamacare, a betrayal in the eyes of many conservatives.) Trump's executive actions on immigration are being challenged by liberal states and cities; if a "First Amendment Defense Act" protecting businesses that discriminate against LGBTQ people became law it would face similar blowback. Everyone says they don't want Supreme Court justices legislating from the bench, but everyone is also equally prepared to sue in order to overturn what they see as bad laws.
Given the immense power justices have, and their lifetime appointments, is it any wonder that their appointments are growing increasingly contentious? Senate Republicans famously flat-out blocked Obama's pick to replace Scalia, Merrick Garland, even though that unprecedented move left the court short a seat for nearly a year. Now some Senate Democrats are ready to filibuster Gorsuch's confirmation. That would likely just end up slightly delaying the inevitable, since the GOP controls the Senate and can change the filibuster rules to get Gorscuh through, but many progressives want their party to get a little bit more spiteful and obstructionist. To quote sex-columnist-turned-lefty-firebrand Dan Savage, "You have to play the dirty fucking game being played, not the goo-goo game you'd rather play."
Looking past Gorsuch, Trump may have one or even two more Supreme Court nominations to make in the next four years if the oldest justices retire or die. And it's not likely that these Supreme Court battles are going to get less contentious—the stakes are too high.
If the Democrats retake the Senate in the 2018 midterms and a Supreme Court seat is left open, what are the chances that they let Trump fill it? Republicans and Democrats will argue against any procedural move that holds up a favorable nomination, but that won't stop such moves from being made. The Supreme Court's word is legally binding. Everything else is just an argument.
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