Constitutional law expert Cass Sunstein has just given the Democratic Senators some advice on how to handle the Gorsuch vote. http://www.newsday.com/opinion/commentary/the-best-strategy-for-democrats-on-neil-gorsuch-1.13322437
Sunstein outlines five options before choosing the one that suggests they vote against any nominee who they feel puts in jeopardy basic constitutional protections, a description he believes Gorsuch warrants; but that they shouldn’t go so far as to filibuster his confirmation if he has the support of a majority of the Senate.
I myself would prefer Sunstein’s option 3; it holds they should not only vote against Gorsuch but , if necessary, also filibuster to prevent his confirmation. Sunstein thinks this stance has its strengths, but finally rejects it as imprudent because it would further encourage the public perception that the Supreme Court is a political rather than a legal institution.
Sunstein agrees that “it is perfectly appropriate for senators to oppose nominees on the ground that they disapprove of their likely judgments, above all if those judgments would be destructive to liberty and equality.” He even admits that this position “is refreshingly candid.” But he rejects it because “it acknowledges that confirmation wars are here to stay, which would be pretty terrible news.”
I too shudder when I hear Supreme Court justices routinely described as “Republican appointees” or “Democratic appointees.” But I think the way to end this embarrassment is to render these terms less relevant in describing the opinions of the individual justices. We need a tacit truce between the parties that provides that Democratic presidents will appoint Democratic moderates to the Court and Republican presidents moderate Republicans. The goal should be a Supreme Court of centrists their opponents think they can live with. Caving in to Mitch McConnell’s “take no prisoners” approach last year is not the way to achieve a centrist court.
Here’s why I part ways with Professor Sunstein. I don’t think that rewarding a bully is ever a good negotiation tactic ; and Senate Majority Leader Mitch McConnell has shown himself to be just that. When President Obama attempted to cool down the nomination wars by choosing the highly respected Democratic centrist judge Merrick Garland as his nominee, McConnell refused to hold hearings on the Garland nomination, urging Republican colleagues not to even meet with him.
Yet now the Republicans choose Neil Gorsuch to serve in Garland’s place. Neil Gorsuch is much like other recent Republican nominees– impeccable academic background, soft-spoken, and adept at giving non-responsive answers to questions that would reveal his views on key constitutional issues. But we know from his opinions and speeches that his confirmation would only tighten the Federalist Society’s grip on the Court.
What will happen if the Democrats accept Gorsuch’s ascension to the Court without a full out fight? Sunstein appears to think that a statesman-like surrender will end the political polarization of the confirmation process, but I think it will only encourage the Republicans like McConnell to be even more aggressive in the future. Why change what has proved a winning strategy?
The way to change the public’s perception of the Court as a hyper-political institution is to appoint justices who are not perceived as hyper-political. And that will only come about when Democratic presidents nominate centrist Democrats and Republican presidents nominate centrist Republicans. And the first step necessary to bringing about this new truce is not rewarding McConnell for his hyper-partisanship.
Some may fear that appointing moderates will rob the Court of input from justices who are willing to push the constitutional envelope. But I think study of the Court’s history shows this to be a false fear. No one expected former Republican District Attorney Earl Warren to lead a constitutional revolution in the due process protections afforded criminal defendants. But Warren did exactly that. And no one ever expected Roman Catholic Reagan counselor Anthony Kennedy to cast the deciding vote in the gay rights case. But he did.
When you give a judge life tenure you must recognize that he or she may “evolve'” to embrace positions we– and even he or she– never foresaw. This intellectual fluidity is good for the Court. Ensure that they start in the mainstream and let time, the responsibilities of the job, and the quirks of human nature give us all the constitutional flexibility we need.