Precedent Be Damned
Brad Johnson, Politics Contributor
In case you have not heard, the Senate GOP voted to “go nuclear” in order to allow SCOTUS nominee Neil Gorsuch a confirmation vote. All over, cries from the Left criticized Republicans for doing away with procedure and decorum. An article in the Huffing(and Puffing)ton Post claimed that as a result, Congress became a Parliament. Every single complaint by Democrats deserve no more credence than to fall on deaf ears. To Democrats, the rules have only mattered when it suits them.
First off, the man they claim to be so ardently opposed has a stellar record of interpreting the law as written. Neil Gorsuch is a refreshing throwback during a time in which many prefer the law to mean whatever fits their agenda. Justice Sotomayor is one who believes being a “wise Latina woman” prepares her better to interpret law than a “white male.” Does that not defeat the whole point of having laws? Lady Justice is blindfolded after all. Gorsuch’s fondness of “Originalism” is admirable and is exactly how adjudicators were meant to conduct themselves. Democrats should be ecstatic with the choice of Gorsuch, because adherence to the law is not a partisan issue. Just as Antonin Scalia defended the 1st Amendment rights of a flag burner in Texas v. Johnson, despite holding tremendous disdain for the defendant, a Justice Gorsuch (I believe) would possess the same reverence for written law.
After the Democrat’s baseless attempts at condemning his record and character, the ire then turned towards the Senate GOP’s “mistreatment” of Obama nominee, Merrick Garland. Scalia’s seat has been deemed “stolen” by many on the Left. When in fact, there is 80 years of precedent holding that a Supreme Court nominee shall not be considered in the last year of a presidential term. The Democrats surely would have appreciated this etiquette had the roles been reversed. In fact, it happened only 25 years ago and was co-opted by none other than Joe Biden. What became coined as the “Biden Rule,” states that the American people should have a say in the Supreme Court vacancy, by way of the presidential election. Democrats did not scream “Unfair!” back then, perhaps because it benefited them, and they are fair-weather fans if there ever was such a thing. Precedents set only apply when the result places finds their agenda in disfavor.
The most famous SCOTUS fight of the last 50 years occurred was the Bork nomination in 1987. That year was prior to the election of 1988, decidedly NOT in an election year. So the Garland case is nowhere near similar in nature. Additionally, the Democrats lost that following election for President, so again, not akin. A new norm did solidify itself in the confirmation process after the Bork incident. The Democrats realized they could hurl ad hominem attacks at whomever the GOP nominated, and they would at least have a shot at stopping the confirmation. Senate Democrats exploited this with Gorsuch, except for the fact that Gorsuch is untouchable in this regard. Thus, bringing us to their desperate final attempt: the filibuster.
The filibuster was a phenomenal “brake” established under Senate rules. Restraints on power is the whole purpose of the Constitution. The filibuster, when used wisely, could prevent a vote on proposed legislation or appointees. However, it has been declawed throughout history. The most notable neutering came in 2013, when then Senate Majority Leader Harry Reid decided to help President Obama “pack” the lower courts. The most famous instance of packing a court occurred in 1937 when FDR attempted to expand the Supreme Court to 15 justices. Harry Reid co-opted this strategy in order to push through a block of lower court nominees. He invoked the “nuclear option” that Republicans used last week. Reid tweeted afterwards “Thanks to all of you who encouraged me to consider filibuster reform. It had to be done.” Reid effectively ended the judicial filibuster because precedent does not matter to Democrats. In their mind, they’d retain power in perpetuity, and thus would not have to worry about Republicans retaliating.
Judge Gorsuch will now become Justice Gorsuch after a 54-45 confirmation vote. I trust that he will be Scalia-esque in his adherence to written law, for that’s what matters in an adjudicator. Personal feelings should be left on the grounds of the National Mall, and not taken into the halls of the Supreme Court building. Democrats would do well to recognize this, or risk turning the court into an oligarchy with little risk of reprisal from voters. But as we have quite often seen, precedent be damned if it challenges agenda.
Follow this author on Twitter: @bradjCincy
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