Following a week that accentuated divisions between lawmakers on the Judiciary Committee, the confrontational struggle over President Trump’s Supreme Court nominee brought one particular phrase back into the spotlight—the so-called “nuclear option.” Despite Judge Neil Gorsuch’s calm demeanor and impressive performance, his nomination prompted Senate Minority leader Chuck Schumer to issue a warning: either select a different candidate or face Democrat resistance through a filibuster. However, Senator Schumer’s fleeting attempt to appear stringent is a lost cause, which has dire consequences for congressional Democrats.
Gorsuch will become the next Supreme Court Justice, it’s just a matter of how.
Regardless of the intense scrutiny that Senate Democrats imparted upon Gorsuch’s judicial record, he has repeatedly proven to be a fair jurist who cares deeply about the law. While liberal committee members framed Gorsuch as a corporate mouthpiece, he rejected these claims by referring to his judicial record with impeccable accuracy. Closer scrutiny of Gorsuch’s decade on Colorado’s 10th Circuit Court of Appeals reveals that out of 2,700 cases 97% of his decisions have been ruled per curium, or unanimous decision. Furthermore, only 1.75% of his 800 majority opinions drew dissent from his colleagues on the court. These are impressive statistics, especially for an appellate court that has 12 jurists appointed by Democratic presidents, compared to the five appointed by Republicans.
Put simply, Gorsuch has an undeniable appreciation for judicial impartiality.
Regardless, Gorsuch represents a significant threat to the Democrats who warmly embrace an evolving interpretation of the Constitution. Sad! Since his days at Columbia University, Gorsuch has drawn the ire of his liberal peers. Establishing a campus newspaper, The Federalist, he fiercely denounced the liberal agenda. According to the Washington Post, when a university debate regarding Marine recruitment on the campus arose, Gorsuch approached the argument using the First Amendment.
“The question here is not whether ‘the Marines should be allowed to recruit on campus’ but whether a University and its community…has the right or obligation to determine who may speak on campus or what may be said.”
However, it would be an oversight to misconstrue Gorsuch as a conservative elitist. Throughout the years, he has earned praise for hiring law clerks that differ from his conservative ideology. He has supported efforts to enhance access to legal services for low-income citizens, which he sees as a crucial right for all to retain. The Post continued, reporting that “…In 2007, after sitting on a panel in which he believed a prisoner’s lawyer had missed arguments critical to his clients, Gorsuch helped launch an effort to improve the representation of low-income prisoners in death penalty cases.” Concern for Gorsuch’s originalist framework—which emphasizes a strict interpretation of the Constitution—is understandable for liberals to express. Yet, when Senators like Amy Klobuchar (D-MO) insinuated that Gorsuch’s interpretation of the Constitution is sexist, he rebuked the tiresome notion. Eventually he responded by conveying his respect for all, regardless of gender
“I’m not looking to take us back to quill pens and horses…Of course, women can be president of the United States. I’m the father of two daughters. And I hope one of them turns out to be president.”
—Gorsuch’s response to Sen. Klobuchar during his nomination.
Inspired by the late Justice Antonin Scalia, Gorsuch represents 40 years of impending change for Senate Democrats. Desperately, Senator Schumer is attempting to block his nomination, threatening to use a filibuster to impede the nomination. Rather than allowing Gorsuch to be confirmed, Democrats are pretending to possess the capacity to block his appointment. These threats will ultimately amount to a conservative victory. Why? First, it’s worth mentioning that Gorsuch received degrees from Columbia, Harvard and Oxford, which means he is educationally qualified for the position. Furthermore, Democrats don’t have any ability to block his path, being the minority party.
Although it’s undeniably enticing to treat Neil Gorsuch like Judge Merrick Garland—president Obama’s unsuccessful nominee for the Supreme Court—Republicans still control the Senate. While Democrats could easily block the nomination with majority consensus, that situation is unrealistic. Instead, there are two options for liberals in Congress: either filibuster Gorsuch or save precious political capital to stop the next appointee. Here’s a quick analysis:
Option A: Filibuster Gorsuch
The term “nuclear option” refers to a parliamentary procedure that would allow the Senate to override the 60-vote requirement for Supreme Court nominees. This option would reduce the amount needed to confirm Gorsuch down to a simple majority, which is 51 votes. Although Senator Schumer believes that Republicans won’t defer to this procedure, Senate Majority leader Mitch McConnell would be justified to use the “nuclear option.” If this occurs, Neil Gorsuch would be pushed through the Senate. Yet, keep in mind this would allow Republicans to fill the next vacancy with a fanatical conservative using a simple majority. Think nominees like Senator Ted Cruz, who would radically shift the Supreme Court’s balance. Democrats from red states would rightfully face angry constituents. While the “nuclear option” wouldn’t necessarily translate into another conservative Justice—especially if another vacancy doesn’t open the 2018 reelection season—there is a possibility for Justice Ted Cruz to become a reality.
The Gorsuch confirmation under Option A would be a perfect opportunity for Republicans to expand their power. Checkmate.
Option B: Save precious political capital, and avoid the “nuclear option.”
Senator McConnell has personally guaranteed Gorsuch’s confirmation, declining to rule out a parliamentary change via the “nuclear option.” This move can be avoided by Democrats. At the cost of allowing a well-respected jurist to pass through the Senate, Democrats would diffuse existing tensions. Moving forward, if Republicans attempted to appoint a crazed fanatic using a parliamentary change Democrats could amass significant support to oppose the move. Furthermore, should conservatives fail to reform the tax system liberals would likely win Senate majority in 2018. This would allow them to effectively block any appointee. Candidates like Ted Cruz would never enjoy confirmation, and Justice Ginsberg or Breyer would be followed by similar nominees.
Under Option B, Democrats preserve their significant power against president Trump. And if Republican tax reform resembles the failed American Health Care Act, a shift in majority count is on the horizon. Checkmate, twice over.