The Nuclear Countdown

The Democrats now appear to have enough votes to filibuster the Gorsuch nomination. Make no mistake: this is not about Gorusch, who is a mainstream conservative judge (and, in some ways, more appealing than Garland). This is about tit-for-tat for the GOP not considering Obama’a nomination, a game that has been building since the 80’s.

The GOP is now talking about invoking the “nuclear option” to end the filibuster. I would prefer that a deal be struck or, if the nuclear option is invoked, it be invoked narrowly on judicial nominations. The GOP will not be in charge forever and there will come a time where we will need the filibuster to stop a Democratic President. A lot of people complaint that the filibuster is “undemocratic”, to which my reply is generally, “Gee, I hope so.” The system is designed to curb the enthusiasm of the people. It needs to continue to do so.

In this case, however, I think killing it is better than letting it hamstring the judiciary forever.

Update: Just to be clear: I don’t think Gorsuch is ideal. I think he’s about as good as we’ll get. But he does not come without concerns. I’m not referring to his stance on issues, but rather to his background. SCOTUS clerk, boutique law firm, the justice Department, then appellate justice. He doesn’t have a lot of experience of our criminal justice system.

And that’s an issue. As I’ve noted before:

One of the biggest problems with the Supreme Court is that, for all the efforts to “diversify” it, the Court has very little intellectual diversity. Every single judge went to either Harvard or Yale Law. Very few have practiced law and none as a defense attorney. As a result, they say stunningly myopic things about our legal system.

SCOTUS decisions have a tendency to read like the minutes of a Harvard debating society. The justices are extremely knowledgeable. They are full of theory and precedent. But their practical knowledge of how the legal system actually works is limited, at best. They’ll debate points of minutia and legal theory, but miss the big picture. It’s what allows them to uphold assert forfeiture using the pedantic lawyer bullshit that property has no right and so charging the property with a crime is OK. It’s what allows them to claim the grand jury system is a functional bulwark of our liberty. It’s what allows them to pretend that a mandate is a tax.

Gorsuch has a few concerns in this direction. During the hearings, he Democrats focused on the trucker case. A trucker had a broken down truck that was freezing as he awaited instructions from the company. He detached the trailer and drove for assistance and the company fired him. He appealed the firing because, under federal labor law, you can’t fire someone for refusing to operate equipment in an unsafe manner. Gorsuch was in the minority in rejecting his argument, saying that the law only applied to people who refused to operate unsafe equipment, not people who refuse to not unsafe equipment, logic the majority tore apart.

The more I’ve thought about this, the more it worries me. Democrats, being Democrats, focused on the poor trucker. But was I was more concerned about a judge focusing so narrowly on the exact wording of a law rather than the intent of the law. Because laws can not be written to anticipate every eventuality. At some point you have to apply common sense (Common Law). And Gorsuch worries me that he’ll be yet another judge who gets lost in the narrow tiny words of the law and fails to focus on what the law actually means.

(And yes, such narrow focus might have struck down Obamacare. It might also strike down every law out there, including a lot we favor.)

Ultimately, I support Gorsuch’s nomination. But it does not come without concerns. It never does.

Comments are closed.

  1. AlexInCT

    It will be so delicious to see Gorsuch appointed through the nuclear option, setting the precedent that will go before replacements for Ginsburg and Kennedy, whom should both be keeling over any time now barring some Weekend at Bernie’s routine.

    The GOP will not be in charge forever and there will come a time where we will need the filibuster to stop a Democratic President.

    They can take a page out of Harry Reid’s book and rewrite the rules.

    Thank you Dingy Harry!

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  2. West Virginia Rebel

    I’m not so sure that having judges who weren’t defense attorneys is necessarily a bad thing-after all, attorneys are legion in politics and a judge is supposed to listen to the arguments of others.

    I do agree that splitting legal hairs over the wording of a law isn’t how you make good law.

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  3. ilovecress

    This is about tit-for-tat for the GOP not considering Obama’a nomination, a game that has been building since the 80’s.

    Kinda – My guess is that it’s more about an easy way to be seen to be in opposition to Trump and play to that low approval rating. They’ve been beaten on this one, and everyone knows it – but they can’t have that TV ad showing them ‘siding with trump’.

    That would also be why they haven’t gone for a full whip on it (as McConnell did) and rather we’re getting the drip drip drip of Senators getting their moment in the sun (or more accurately on Twitter) to dramatically announce that they’re going to vote ‘no’. It’s making as much political theatre as possible out of a vote they know they’re going to lose.

     

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  4. Technomad

    The thing is, ever since Roe vs. Wade, every appointment to the Supremes has had to deal with endless questions about abortion.   For some reason, this issue is a hill that both sides are willing to stand and die on.   The Dems are terrified that a “conservative” court will overturn Roe vs. Wade, and a lot of Republicans would love to do just that.  Hence the endless clapper-clawing.  Neither side will give an inch on this ooint.

    I’d a lot rather we just amended the Constitution to either permit or forbid abortion, taking it out of the hands of the Supremes.  Once that was done, this sort of endless quarrelling would likely die down, or at least not be so virulent.

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  5. Iconoclast

    Just to be clear: I don’t think Gorsuch is ideal. I think he’s about as good as we’ll get. But he does not come without concerns.

    Well, it goes without saying that nobody’s perfect, but yeah, I agree, Gorsuch is about the best we can hope for, as he would uphold the COTUS as it’s written.  Also, for added perspective, imagine who we’d be dealing with right now if Hillary had won the White House…..

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  6. AlexInCT

    No, we would be dealing with some asshole that despite going to law school thinks it is the Judiciary that changes the laws and the constitution, and not congress through a constitutional congress or passing of laws. And they would work hard to do so ignoring that the role of the Judiciary is to simply verify laws are compliant with the constitution, as written, and not some living version of it, and leave it at that. After all, with that sort of moron – left or right – the end justify the means has always led to the slippery slope and shit that hurts…

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  7. ilovecress

    Icon – out of interest, who are you imagining that she would have nominated? Because the left were pretty sure she’d stay with Garland, and were lamenting Obama not making a more progressive pick before Clinton made a more centrist one….

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  8. Hal_10000 *

    Also, for added perspective, imagine who we’d be dealing with right now if Hillary had won the White House…..

    A lot of people think she would have stuck with Garland, but I’m dubious.  I think if the Democrats had taken the Senate, she’d be replacing him with someone really dangerous.  It tells you a lot that many Democrats fantasize about getting that fascist twerp Kamala Harris on the bench.

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  9. AlexInCT

    A lot of people think she would have stuck with Garland, but I’m dubious.  I think if the Democrats had taken the Senate, she’d be replacing him with someone really dangerous.

    This was almost a given and a requirement of the continued effort to weaponize government that started with Obama and was supposed to end in perpetual democrat hold on the WH. With a beholden Judiciary, the DOJ and IRS doing the dirty work against, and the intelligence agencies spying on, their political enemies, nobody but a democrat would ever again get into the WH. And everyone else would be vulnerable and forced to play ball with them. When these people pointed out how much the admired the Chicomms they were not kidding. The Soviets would approve of what team Obama had accomplished and team Clinton was supposed to carry over the finish line.

    Unfortunately for them, and fortunately for us, Clinton lost. Now lets hope Trump uses the machine these scumbags built to tear their machine down and then gets rid of it. For all our sakes.

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  10. Iconoclast

    Icon – out of interest, who are you imagining that she would have nominated? 

    I didn’t have any particular person in mind — I was just recalling various statements Hillary made about certain SCOTUS decisions, such as Citizens United, or the Heller decision, and would nominate Justices who would have ruled differently.  Even if she nominated Garland, that would still be replacing a conservative with a “moderate” liberal, thereby tilting the balance much more than the Gorsuch appointment will.  But then, I agree with Hal that she would have picked someone far less “moderate” had the Democrats taken the Senate.

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