Russell Shaw The Struggle to Shape the Supreme Court

Feb 16, 2017

Just as people who like sausage shouldn't visit a sausage factory, so people who stand in awe of the United States Senate shouldn't get too close to the confirmation fight over Judge Neil M. Gorsuch, President Trump's first Supreme Court nominee, lest they see more senatorial sausage-making than they bargained for. It threatens to be an ugly affair.

Gorsuch is, by all accounts, highly qualified. But not only is he conservative-a strict constructionist and textualist in interpreting the Constitution and the law-he is also the choice of a controversial president. Plus, it appears, distinctly prolife, having once written (in a book on assisted suicide and euthanasia) that "all human beings are intrinsically valuable."

His confirmation for the seat occupied by the late Justice Antonin Scalia is likely in the end. But not until Senate Democrats, spurred on by Minority Leader Charles Schumer (D-NY), have given him as hard a time as they can.

In fairness, the Democrats have their reasons. Following Scalia's death last year, President Obama named another federal appeals court judge, Merrick Garland, to succeed him. But Obama had already placed two liberal justices on the court-Sonia Sotomayor and Elena Kagan-and Senate Republicans, balking at a third Obama choice in a presidential year, blocked Garland's confirmation by simply doing nothing about it. 

The Democrats cried foul. And their opposition to the Gorsuch nomination can be seen, at least in part, as payback for what happened to Garland.

Although it's hard to see how any of this adds up to a justification for denying a seat on the Supreme Court to a well-qualified candidate, the confirmation process will be marked by partisan conflict just the same.

Robert Bork, were he alive today, could tell Gorsuch how bad it can get. Back in 1987 Ronald Reagan nominated Bork, a distinguished legal scholar, for a seat on the court. The events that followed set a precedent for the contentious Supreme Court confirmation battles that have been a recurring feature of national life since then. 

Hardly had Bork's nomination been announced than Sen. Edward Kennedy (D-MA) took to the Senate floor to oppose it, invoking monsters from the liberals' chamber of horrors-"back alley" abortions, segregated lunch counters, "rogue police" breaking down doors at midnight-to explain why putting Bork on the court would be a disaster.         
                      
In the weeks that followed, Kennedy spearheaded a campaign of name-blackening that culminated with Bork's rejection by the Senate, 58-42. Bork became a Catholic in 2003. Mrs. Bork today is a popular Catholic writer and lecturer. 

When and if Gorsuch does make it to the Supreme Court, the lineup there will be basically what it was before Scalia's death-a 4-4 split between liberals and conservatives, with Justice Anthony Kennedy as the swing vote. It will take another conservative justice to shift that in the conservatives' favor.

Will Trump get another chance to name a new justice? There is no way to answer that for sure. The court's three oldest members are Ruth Bader Ginsburg, 83, Kennedy, 80, and Stephen Breyer, 78. Ginsburg and Breyer, both liberals, are unlikely to quit voluntarily as long as Trump is naming their successors. As for Kennedy (for whom Gorsuch clerked many years ago), there's no telling.

Large issues hang in the balance here, among them the future of abortion law and the defense of religious liberty. Never mind about the sausage factory. Concerned Americans need to keep a close eye on the Gorsuch confirmation fight that lies ahead.