When it comes to the courts, there’s an old saying, “The wheels of justice turn slowly.” So what happens when the slow-turning courts interface with a dysfunctional Congress? It appears the wheels just about grind to a halt.
On February 13th, 2016, United States Supreme Court Justice Antonin Scalia died on a private ranch in Texas. His replacement, Judge Neil Gorsuch, wasn’t nominated until January 31st, 2017, nearly one year later. Now, a full three months after that, we’re just getting around to a vote by the Senate Judiciary Committee and a probable referral to the full Senate later today. That sets up a floor debate and a possibility that Judge Gorsuch, if confirmed, will join the Court before the end of April, a full 14 months after Justice Scalia’s passing.
That said, everything that has happened to date was easy compared to the heavy lift coming later this week. That’s when Senate Republicans will have to deal with an expected Democrat filibuster. Gone are the days when a former ACLU chief legal counsel, named Ruth Bader Ginsburg could be confirmed by a roll call vote of 96 to 3. Gone are the days when Republicans and Democrats gave deference to a President and let him have HIS choice of a nominee. The Court is now as active in making social policy as Congress, and for that reason, and that reason alone, the confirmation process has become highly partisan. In the eyes of many, the Court acts as a super-legislature, awarding by judicial decree that which is not achievable by political consensus.
As for the filibuster, it takes a super-majority of 60 votes to override, and the Republicans only have 52. They need eight Democrats to join them, and at this point, they’ve only gotten commitments from three. Montana Senator Jon Tester has promised to vote against the Gorsuch nomination for a whole host of reasons that basically boil down to the fact that he’s not liberal enough. And Senator Tester is backed by former Montana Supreme Court Justice Jim Nelson, himself a far-left liberal who, as the poster child of judicial activism, regularly used his seat on the Court to promote a liberal agenda.
As I’ve said before, elections have consequences, and Senator Tester must realize that Donald Trump beat Hillary Clinton in Montana by over 100,000 votes, and barring issues of character, should be allowed to present a nominee who reflects his political philosophy. President Obama got Justices Kagan and Sotomayor, both of whom have proven themselves to be members of the far left. And to top it all off, this should be one of the easiest votes to confirm that any senator will ever take. The vote will not affect the balance of power on the Court; Trump is simply asking to replace a conservative Scalia with a conservative Gorsuch. If the Democrats continue to threaten a filibuster on this easy confirmation, then Senate Majority Leader Mitch McConnell may be forced to exercise the so-called nuclear option by changing the rules to require a simple majority vote to override a veto.
It’s sad that everything that Congress touches must now be tainted by partisan politics, but it’s a reflection on who we are as a people. We encourage Senator Tester to show courage and leadership, to rise above partisan politics and to quickly confirm Judge Gorsuch, so the Senate can focus on more pressing issues, such as the national debt.