Supreme Court skullduggery?
March 14, 2017
Filed under Opinion
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Next Monday, around 9 a.m., a hearing will begin in Washington, D.C. that will initiate what could be a knock-down, drag-out war. Democratic Minority Leader Sen. Chuck Schumer (D-NY) has promised to filibuster the individual under scrutiny.
This individual is none other than Neil M. Gorsuch — a graduate of Harvard Law School, Marshall Scholar and understudy of the Supreme Court, having clerked for both Justice Byron White and Anthony Kennedy.
Why all the uproar? Though no one would mistake Washington, D.C. for Mayberry when it comes to tranquility, this brouhaha is not based on Judge Gorsuch’s credentials; This dispute traces back to February of last year and the death of Justice Antonin Scalia. Shortly after Scalia’s death was confirmed, Senate Majority Leader Mitch McConnell (R-KY) flatly refused to consider any successor until after the Nov. 4 elections — a move that sent Democrats howling, and quite understandably so.
Gorsuch’s recent nomination rekindled controversy with many Democrats crying foul and Senate Republicans eager to confirm Scalia’s heir apparent.
Was this thievery by Republicans? No.
Was McConnell’s refusal obstructionist? Possibly.
Were Republicans playing hardball over the next justice of the most powerful court in the nation? Definitely.
Theft of a seat?
After McConnell summarily dismissed any notion of installing Scalia’s successor until after the elections, many spoke of Scalia’s seat in terms of robbery. The object: a powerful, lifetime appointment that would render influential decisions for decades. The suspects: a certain variety of characters known as “conservatives,” also known as Republicans.
A cursory view of the evidence seems to merit a rather straightforward sentence: guilty as charged.
However, upon closer examination of pertinent documents, while there may not be any precedent for McConnell’s refusal, there certainly is for a Supreme Court with fewer than nine justices.
For the first 48 years of its existence, the Supreme Court, by design, never seated more seven justices. The Constitution doesn’t give a set number of justices, so that must be determined by Congressional statutes. The current number of requisite justices was set by federal law in 1837.
Though an eight-justice court is unusual, it is not unheralded.
Not only that, but one justice believes that the eight-member court isn’t a big deal.
Disorder in the court?
While many have been concerned about the possibility of a split 4-4 decision being rendered by the high court, Justice Stephen Breyer doesn’t harbor any qualms about being a member of an eight-justice court.
Speaking in an interview with MSNBC, Breyer commented that “Half of our cases are unanimous. The 5-4 cases are probably 20 percent, and it isn’t the same five and the same four.”
And it isn’t as if the unanimous decisions are light and trivial matters, either. Breyer said, “A lot of those unanimous cases are also very important.”
Though an eight-member court isn’t ideal, Breyer doesn’t seem to think the sky is falling with Scalia’s vacant seat.
I have a sneaking suspicion that this isn’t the primary reason behind the Democrats’ animus over this issue.
Welcome to the party: The pity of politics
All nominees for justice of the United States Supreme Court should undergo a high level of scrutiny during their confirmation process. They sit for the rest of their lives on the highest bench perhaps in the world; they are not directly elected by the people, and, generally speaking, the electorate has little say in what kind of legal mind gets the nomination.
With a vacant seat open on Nov. 4, we the American people weren’t simply voting for who would sit in the Oval Office the next four years; we were determining the successor of one of the greatest legal minds of our age.
Though it might seem unfair to some to refuse to even hold hearings for President Obama’s nominee, Merrick Garland, Democrats had every opportunity to win the White House and, thus, choose the next justice.
The American people spoke decisively in November and, in effect, chose Gorsuch. Oddly enough, 11 years ago, so did Chuck Schumer. While there will most likely be much to-do over Gorsuch, it seems that this stems more from an attitude of bitterness over a lost election than from any actual skullduggery.