Confirming Judge Neil Gorsuch

The Senate Judiciary met in Executive session yesterday to consider, among other nominations, the nomination of Judge Neil Gorsuch to be an Associate Justice of the Supreme Court of the United States. Normally the committee would vote on these and report them to the floor. But in keeping with the delaying tactics that the minority party, Democrats, have employed on Administration nominations the three nominations, including Judge Gorsuch, were held over for another week by request of the minority. What this means is they will reconvene next week and vote on these nominations, including Rod Rosenstein to be the Deputy Attorney General and Rachel Brand to be Associate Attorney General.

Before we get to Judge Gorsuch lets look at the other two nominees. Rod Rosenstein is a distinguished attorney, a former U.S. Attorney for Maryland, from Baltimore.   He is a graduate of the Wharton School with a degree in Economics (summa cum laude) and a Harvard law graduate (cum laude) where he was the editor of the Harvard Law Review. But Mr. Rosenstein is not new to delay tactics. In 2007 he was nominated to the U.S. Court of Appeals for the Fourth Circuit and was blocked by Democrats who refused to fill the position and delayed it until President Obama took office.  Anyone see something ironic here?

Then we have Rachel Brand. She is another distinguished graduate of Harvard Law School and clerked for Justice Anthony Kennedy in the Supreme Court. She served in the Office of Legal Policy in the Bush Administration and was appointed by President Obama to serve on the Privacy and Civil Liberties Oversight Board. She has wonderful credentials to fill the position she is nominated to hold.  But she is also being delayed because she is a Trump nomination.

I point out these two nominees to demonstrate that whenever someone begins to ask why the Trump administration is not moving faster you can point to the Democrats in the Senate who are doing everything they can to stall and delay administration nominees.

So now we come to Judge Neil Gorsuch. Be any standard you want to measure a judge he is deemed well qualified. He has been praised by those in the legal community from all points of view in the political spectrum. There is no doubt that he is as qualified as Sonia Sotomayer and is better qualified than Elena Kagan simply because Justice Kagan had no experience on the federal bench prior to her nomination. But the Minority Leader, Chuck Schumer, has demanded that his party in the Senate refuse to confirm Judge Gorsuch. The question is why since Judge Gorsuch was confirmed to the Tenth Circuit of Appeals by a unanimous vote in 2006.  I think we all have some ideas about why they are doing this and the root is politics.

Last year President Obama nominated Judge Merrick Garland to fill the spot on the Supreme Court that was created with the untimely death of Justice Antony Scalia. I will be the first to say that Judge Garland was well qualified and in any other circumstances would have been confirmed. But his nominations happened to occur in the middle of a Presidential election and the Republicans controlled the Senate. This led the Majority Leader, Mitch McConnell, to make a decision not to allow the nomination to proceed and to let the next President make another nomination. They cited the “Biden Rule” quoting the then Chairman of the Senate Judiciary in a 1992 speech on the Senate floor where he said that should an opening occur on the Court during that election year he would not allow it to proceed and would delay it until a new President was elected. This speech was given because of a rumor that a Justice was considering retirement that year but in fact nobody actually retired.

The Democrats have argued that President Obama had a Constitutional duty to nominate a successor to the Court.  They are correct.  But they are wrong when they say the Senate had a Constitutional duty to confirm Judge Garland.  They could have brought him up for a vote and voted him down.

I have maintained that the Republicans actually did Judge Garland a favor by not holding hearings and votes on his nomination. It is obvious that had they done so he would have failed to advance out of committee and even if that had occurred he would not have gotten the necessary votes on the floor to be confirmed. Why put such a black mark on an otherwise exemplary career of a fine jurist.   Years later all that would be noted was that he was nominated for the Court and failed to gain the necessary votes for confirmation.

So now we are looking at the situation with Judge Gorsuch. I am not sure what happened since his last confirmation when not a single Senator could muster an objection but now he is considered “unqualified” for the Court by those in the Democrat minority. His sin apparently is that he is being nominated for a seat that the Democrats think was stolen from them. But in private conversations with Democrats they have admitted to me that had the roles been reversed Harry Reid would have done the same thing.

So lets assume that when the vote is finally held on the Senate floor the Democrats object to a unanimous consent request to move to the nomination. What that means is they are signaling the Majority Leader that there will need to be 60 votes to confirm Judge Gorsuch. Minority Leader Schumer has gone on record with this statement:

“To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules I say: if this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees, and President Bush’s last two nominees, the answer isn’t to change the rules — it’s to change the nominee,”

He is stating that it is tradition to have a nominee attain 60 votes. If the Republicans had known this was coming I can assure you that Kagen and Sotomayer would have fallen short of that 60 vote total. But he is not even correct in suggesting that this is the tradition. Two justices currently on the Court were confirmed with less than 60 votes – Justice Clarence Thomas was confirmed in 1991 with 52 votes and Justice Samuel Alito with 58 votes in 2006. And lets be honest, Gorsuch is probably as good as it will get for Democrats as far as nominees from Trump. If they reject him as “unqualified” then they are signaling they will not support any nominee.

This will force Mitch McConnell to use the nuclear option to confirm Judge Gorsuch. This, in my opinion, is a huge mistake by the Democrats and I believe they are being forced to take this route to appease the hard left and oppose any nominee by President Trump. They would have been better off to hold their powder for the next vacancy and make it more difficult for McConnell to change the rule eliminating the filibuster and the 60-vote requirement. Once that is done the majority party can confirm any nominee and the hearings and debate will become and exercise in futility since it will have no bearing on the ultimate outcome.

We are heading down a road of further partisan rancor that is discouraging. Both sides deserve some blame in this debacle but right now it is the Democrats that are having the hissy fit and playing pure partisan politics. One of President Obama’s most famous quotes was “elections have consequences”. This was made in a closed door meeting at the White House right after he had been sworn in as President in 2009. This meeting was over the stimulus package and when the Republicans failed to agree to all aspects of it he made the famous statement following it up with “At the end of the day, I won. So I think that trumps you.” This led to another statement that Mitch McConnell probably wished he could retract when he later said “we want to make him a one term President.”

I do have to flesh these two comments out a bit. The Democrats would have you believe that McConnell made this statement as soon as Obama was elected.   That is not the case.   It was made in October of 2010, almost two years into his Presidency, and just before the mid-term elections. It was made in a brief interview with the National Journal and since it is a fairly short interview I give it to you in its entirety.

NJ: You’ve been studying the history of presidents who lost part or all of Congress in their first term. Why?

McConnell: In the last 100 years, three presidents suffered big defeats in Congress in their first term and then won reelection: Harry Truman, Dwight Eisenhower, and the most recent example, Bill Clinton. I read a lot of history anyway, but I am trying to apply those lessons to current situations in hopes of not making the same mistakes.

NJ: What have you learned?

McConnell: After 1994, the public had the impression we Republicans overpromised and under delivered. We suffered from some degree of hubris and acted as if the president was irrelevant and we would roll over him. By the summer of 1995, he was already on the way to being reelected, and we were hanging on for our lives.

NJ: What does this mean now?

McConnell: We need to be honest with the public. This election is about them, not us. And we need to treat this election as the first step in retaking the government. We need to say to everyone on Election Day, “Those of you who helped make this a good day, you need to go out and help us finish the job.”

NJ: What’s the job?

McConnell: The single most important thing we want to achieve is for President Obama to be a one-term president.

NJ: Does that mean endless, or at least frequent, confrontation with the president?

McConnell: If President Obama does a Clintonian backflip, if he’s willing to meet us halfway on some of the biggest issues, it’s not inappropriate for us to do business with him.

NJ: What are the big issues?

McConnell: It is possible the president’s advisers will tell him he has to do something to get right with the public on his levels of spending and [on] lowering the national debt. If he were to heed that advice, he would, I imagine, find more support among our conference than he would among some in the Senate in his own party. I don’t want the president to fail; I want him to change. So, we’ll see. The next move is going to be up to him.

NJ: What will you seek from the president on the tax issue?

McConnell: At the very least, I believe we should extend all of the Bush tax cuts. And I prefer to describe this as keeping current tax policy. It’s been on the books for 10 years. Now, how long that [extension] is, is something we can discuss. It was clear his position was not [favored] among all Senate Democrats. They had their own divisions. I don’t think those divisions are going to be any less in November and December. 

I want to call to your attention what I think was the key statement in that brief interview. McConnell made it clear by stating “If President Obama does a Clintonian backflip, if he’s willing to meet us halfway on some of the biggest issues, it’s not inappropriate for us to do business with him.”    He later said in the interview “I don’t want the president to fail; I want him to change.”

That was the key comment. He signaled the President that if he was willing to negotiate with them they were willing to reciprocate. But Obama ignored Congress in general and especially Republicans even after losing terribly in the 2010 elections.

So where do we go on Judge Gorsuch. I am confident that he will be confirmed and if forced to McConnell will change the rules and allow him to be confirmed with a simple majority vote. That will be a step backward for the Senate and it will be on Chuck Schumer.

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