Why Opposing Gorsuch is Bad Strategy

Look, I dislike Supreme Court Justice Nominee Hon. Neil Gorsuch as much as anyone who considers themselves on the political left. That is to say, I really dislike Judge Gorsuch and oppose his judicial philosophy on almost any issue, given his statements and previous rulings. I think his assumption of the late Justice Scalia’s seat on the bench would open the door to disastrous 5-4 rulings on everything from a woman’s right to her own body, the use of torture and so-called “black sites,” LGBT equality, separation of church and state, separation of powers, environmental regulation — basically, well, everything of contemporary judicial consequence, and that could cause far-reaching disasters for decades to come.

Of course, this should be Merrick Garland’s seat, but that discussion can go on ad infinitum and won’t change the fact that Republicans are dicks and we’re stuck with a Trump nominee. Now here’s why opposing Gorsuch is the wrong move right now; Trump — even as the one-term president (if even) he’s working really hard to be — likely will have at least, and I can’t emphasize that enough — at least — one more Supreme Court pick. Statistically speaking, the Justices whose seats Trump would get to fill are those of Justice Ruth Bader-Ginsburg [84y, 0m — and happy belated birthday! (15 March)] and Justice Anthony Kennedy (80y, 8m and the longest-tenured member of the Court at 29y, 1m); Justice Stephen Breyer turns 80 next year.

Gorsuch would be replacing Scalia, and all the pundits have issued the talking point that, in terms of jurisprudence, Gorsuch’s philosophy most resembles that of Justice Scalia. This is obvious, but you’d be trading one conservative for another; the Court’s ideological balance would revert to the status quo ante. Beyond that, Gorsuch, in his hearings, at least (which I watched far more of than I thought possible), and in the few opinions of his I’ve read seems to possess a very agile and knowledgeable legal mind. His prose doesn’t dazzle or bite like Scalia’s, but whose does? Of course, you’ll also hear that his colleagues and even opposing counsels hold him in very high esteem, etc. None of this diminishes from the wrongheadedness of his judicial philosophy, as if a 230-year old document written by white men could anticipate many of the issues on which the Court must rule, but that’s its own discussion, on which oil tankers’ worth of ink has already been spilled, and on which I’m not qualified to pronounce judgment.

To get to the point finally, Gorsuch is at least a competent and seemingly thoughtful jurist. Despite the major victory in derailing Republicans’ attempt to destroy America’s healthcare system (such as it is), Democrats would be wise to keep their powder dry on the Gorsuch nomination. Even with a filibuster, he’s highly likely to end up being confirmed; plus filibustering raises the prospect of Sen. McConnell using the so-called nuclear option, giving Trump essentially carte blanche for any future nominee. Let Gorsuch replace Scalia; save the fight for the next round, when it won’t be the Court’s most conservative Justice being replaced by another conservative, but potentially a “liberal” Justice being replaced by a conservative; and, given Trump’s propensity for nepotism, one who may be grossly unqualified unlike Gorsuch.

It really pains me to write this, but to take a pragmatic long-term view, there’s more to be lost than gained in an ultimately quixotic attempt to block Gorsuch.

(Caveat: I am neither a lawyer nor a law student; any legal analysis is predicated only on what I’ve read and researched independently)

~ by Benji on March 26, 2017.

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