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.