The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump's just-announced Supreme Court nominee had not even left the East Room of the White House before my notifications were filled with news releases and tweets urging opposition to Neil Gorsuch's confirmation. Immediately, the partisan hypocrisy concerning judicial nominations was on display.
The usual pitch against a Supreme Court nominee is that he or she will alter the balance of the court, but that argument has no purchase here. Replacing one conservative jurist with another won't alter the balance of the court much at all.
Instead of trying to maintain that the confirmation of Judge Gorsuch and the maintenance of the Supreme Court's current balance would somehow imperil individual rights, Senate Democrats and their allies are instead arguing that Gorsuch must be blocked to retaliate for Senate Republicans' unfair treatment of Merrick Garland, whom President Obama chose last March to replace Justice Antonin Scalia but who never received Senate confirmation. This seat, the argument goes, was "stolen" from a Democratic president, and must therefore be kept open. This injustice, they argue, justifies a filibuster of Gorsuch.
[interstitial_link url="https://www.washingtonpost.com/opinions/hugh-hewitt-democrats-made-confirmation-easier-for-trump-nominees-the-gop-should-fix-that/2017/01/31/b6e0f532-e7f2-11e6-80c2-30e57e57e05d_story.html?utm_term=.c6064b701a73″]Hugh Hewitt: Democrats made confirmation easier for Trump nominees. The GOP should fix that.[/interstitial_link]
The problem with this argument is that most Senate Democrats were willing to filibuster a Supreme Court nominee before Garland was nominated, let alone blocked by Republicans. Indeed, before Barack Obama was even elected president, prominent Senate Democrats and progressive activists tried (but failed) to filibuster President George W. Bush's nomination of Samuel Alito. Thus, the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for Garland is complete and utter nonsense.
Let's review the history.
A majority of Senate Democrats (25 of 45) voted to filibuster Bush's nomination of Judge Alito to replace Justice Sandra Day O'Connor. The Senate Democratic leadership was united in opposing cloture, and those voting in support of the filibuster included Sens. Chuck Schumer, Dick Durbin, Dianne Feinstein, Hillary Clinton and Barack Obama. At the time, Sen. John Kerry claimed a vote against cloture on the Alito nomination was "a vote of history."
Progressive activist groups such as the Alliance for Justice and People for the American Way likewise supported a filibuster of Alito. When the filibuster effort failed, the PFAW's Ralph Neas called it "excruciatingly disappointing." AFJ President Nan Aron said those who sought to filibuster Alito "showed extraordinary principle."
Prominent liberal academics, including some who claimed the Senate had an obligation to hold an up-or-down vote on the Garland nomination, urged Senate Democrats to filibuster Alito as well. Noted constitutional scholar Erwin Chemerinsky, for instance, wrote in 2006 that "Democrats must filibuster to block the nomination of Samuel Alito for the United States Supreme Court."
The effort to filibuster Alito's confirmation was not an aberration but a sign of how Senate Democrats planned to respond to future Republican nominations to the Supreme Court. How do we know? Because they said so.
[interstitial_link]Gorsuch's judicial philosophy is like Scalia's—with one big difference[/interstitial_link]
After Alito was confirmed, Schumer gave a speech to the American Constitution Society in which he said he "should have done a better job" fighting Alito's confirmation. "My colleagues said we didn't have the votes, but I think we should have twisted more arms and done more." In other words, he should have fought harder to make the filibuster successful. In this same speech, Schumer proclaimed he would urge his colleagues not to confirm any future Supreme Court nominations made by Bush, save in extraordinary circumstances. (In other words, he said he would urge Senate Democrats to do to Bush what Senate Republicans did to Obama, as did then-Sen. Joe Biden had in 1992.)
As the record plainly shows, Senate Democratic leaders and progressive activists are not urging a filibuster of the Gorsuch nomination solely as retaliation for the Senate Republicans' poor treatment of Garland. They are instead pushing Senate Democrats to simply do what they've done before and said they would do again.
Let me also address the argument that obstruction is justified because the open seat on the Supreme Court was "stolen." First, the argument that the open seat on the Supreme Court was "stolen" is curious. The idea seems to be that if there is a judicial vacancy, it belongs to the president in office. If that is the case, however, then we have had many "stolen" judicial seats, as there have been quite a few instances in which presidents have nominated qualified individuals to open seats on the federal bench and the Senate sat on its hands. For example, in fall 1991, President George H.W. Bush nominated Lillian BeVier and Terrence Boyle to open seats on the U.S. Court of Appeals for the 4th Circuit. The Senate Judiciary Committee took no action on either nomination. The same thing happened to John G. Roberts Jr. when he was first nominated to the U.S. Court of Appeals for the D.C. Circuit in January 1992. If the current Supreme Court vacancy was "stolen," then these vacancies were "stolen," too (as were the vacancies for which Senate Republicans refused to consider President Bill Clinton's nominees).
Is the Supreme Court different? It's certainly more important, but there is only one appointments clause in the Constitution, and Congress determines how many seats there are on the Supreme Court, just as it determines how many seats there are on lower courts. The argument that the Supreme Court is different is an argument not that only Supreme Court vacancies may be "stolen" but rather that it's okay to steal some seats but not others. That's an understandable political position, but it's hardly a question of principle.
[interstitial_link]Ignore the attacks on Neil Gorsuch. He's an intellectual giant—and a good man.[/interstitial_link]
Is there nonetheless an argument that it is somehow more objectionable to block a Supreme Court confirmation than a lower court confirmation? Perhaps, but the position of Senate Democrats has been precisely the opposite. In voting to eliminate filibusters of lower court nominations—but purporting to keep the filibuster in place for Supreme Court nominations—Senate Democrats took the position that it is more appropriate to block a Supreme Court confirmation than a lower court confirmation. Therefore, if it was appropriate for Senate Democrats to prevent any consideration of highly qualified Republican nominees to the U.S. Courts of Appeals, it was equally appropriate for Senate Republicans to respond in kind, and no less appropriate for Senate Republicans to do the same to Garland. (To be clear, I'm not endorsing what Republicans did, but merely noting the logical implications of the Senate Democrats' position. I did not support the obstruction of the Garland nomination or that of any of Obama's judicial nominees.)
A final point. If it were up to me, there would be no obstruction of any qualified nominee to any court, and I have maintained this position for more than 15 years. It is said that the courts follow the election returns, and if the Senate would promptly consider and confirm all qualified judicial nominees, that is precisely what would happen. Such an approach would help depoliticize the courts and help ensure that the federal bench is filled with brilliant jurists spanning the ideological spectrum. I believe that would be a good thing, but that's not the approach to judicial confirmations we've had for quite some time. Instead, we've had an endless cycle of retaliatory escalation (i.e., tit for tat), going back to the mid-1980s. Both parties have behaved poorly and justified their actions as retaliation for what the other party did. Perhaps now that the White House and Senate are in the same ends, a new norm can be set, and we can move back toward a more orderly approach to judicial confirmations. I'm not holding my breath.