RightWisconsin | Szafir, Roth: Democrats Are to Blame if Senate Goes “Nuclear”

 In SCOTUS

This piece originally appeared at RightWisconsin.

Gorsuch is a mainstream conservative nominee and GOP must confirm him at any cost; Republicans must not give in 

This week’s showdown over Judge Neil Gorsuch’s confirmation to the U.S. Supreme Court is expected to reveal if Senate Democrats, including Wisconsin Senator Tammy Baldwin, are so controlled by the far left that they are willing to toss aside fair consideration in the name of partisanship and revenge. While the rallying cry in 2016 was #WeNeedNine, It’s all about #TheResistance now.

Today the Senate Judiciary Committee will vote on the appointment of Judge Gorsuch to the Supreme Court. Gorsuch is expected to be approved and, then, according to Majority Leader Mitch McConnell, the full Senate could vote on Friday, April 7.

But Senate Minority Leader Chuck Schumer is actively urging his Democratic colleagues to filibuster Gorsuch, a parliamentary maneuver to prevent a vote unless there are 60 votes to end debate.  With 52 Republicans, Gorsuch needs 8 Democrats to vote for cloture. If a filibuster occurs, Majority Leader Mitch McConnell, by all accounts, is prepared to “go nuclear” and eliminate the filibuster for Supreme Court appointments.

If that happens, Gorsuch – and future Supreme Court appointments – would need only a simple majority for approval. This is a big deal and will forever change Supreme Court appointments. And what is perhaps most stunning about this episode is that it appears to have very little to do with Judge Gorsuch and everything to do with the state of today’s Democratic Party.

Judge Gorsuch, educated at Columbia (B.A.), Harvard (J.D.) and Oxford, is a qualified, mainstream conservative judicial candidate. After law school, he clerked for U.S. Supreme Court Justices Byron White and Anthony Kennedy (not exactly fire-breathing radicals).  Since 2006, Gorsuch served on the U.S. Court of Appeals for the Tenth Circuit in Denver.

Judge Gorsuch has a conservative judicial philosophy (as CJ previously wrote in the Journal Sentinel).  He is a textualist who believes that judges should be guided by the text of the law and Constitution, rather than their political beliefs. Gorsuch has questioned whether the administrative state has grown too large (due to so-called Chevron deference), boasts a strong record defending religious liberty in Hobby Lobby, is critical of over-criminalization, and respectful of the 2nd Amendment.

His confirmation hearing was relatively uneventful although a number of liberal attorneys testified favorably of Gorsuch’s legal analysis and demeanor. He will be an excellent successor to the late Justice Antonin Scalia and his appointment would maintain the current balance on the court.

But none of that matters to Senate Democrats. Gorsuch is a conservative and he was nominated by President Trump.

The night Gorsuch was nominated some Democrats immediately refused to even consider his nomination. “President Trump had the chance to select a consensus nominee to the Supreme Court. To the surprise of absolutely nobody, he failed that test,” said Massachusetts Sen. Elizabeth Warren.

Sen. Ron Wyden of Oregon, resorting to ridiculous hyperbole, tweeted, “Gorsuch represents a breathtaking retreat from the notion that Americans have fundamental Constitutional rights.”  Huh?

Wisconsin’s Senator Baldwin initially said she would give Gorsuch “fair consideration” and “fully review” him. Two days later, Baldwin, succumbing to pressure from liberal advocacy groups, said she would vote no and support a filibuster, earning a “Full Flop” from the Milwaukee Journal Sentinel’s PolitiFact.

This is the same Neil Gorsuch that was unanimously approved in 2006 to the Court of Appeals which included support from then-Senator Russ Feingold. Put another way, the Democratic Party has moved so far left that Senator Baldwin wants to filibuster a guy who was supported (until recently) by Feingold.

This is unprecedented. Until recently, Supreme Court nominees, regardless of which party the president belonged to, earned up or down votes based on their qualifications for the job. The late Justice Antonin Scalia was approved 98-0 in 1986. Ruth Bader Ginsburg was given the nod 96-3 in 1993. While the recent appointments of Justices Samuel Alito, Elena Kagan, and Sonia Sotomayor were approved on mostly party line vote (still a handful crossed over), the minority party did not filibuster the appointment, i.e. there were not 40 Senators who tried to stop the vote from taking place.

But now, for the first time ever, a nominee to the Supreme Court may be filibustered solely due to his judicial philosophy.  And perhaps sour grapes about Judge Merrick Garland’s appointment, which apparently means the seat should be vacant forever. Consider what Republican Senator Jon Kyle, a member of leadership, said when asked about a filibuster for Justice Kagan, “The filibuster should be relegated to extreme circumstances and I don’t think Elena Kagan represents that.”  That’s the polar opposite of how Gorsuch is being treated by Schumer.

Nuking the filibuster is not a decision to be taken lightly. The pendulum always swings back and forth in politics. Republicans will surely miss it if, and when, they are out of power.

But if the Democrats do muster enough votes for a filibuster – and they are close – Senator McConnell has no choice. Republicans cannot back down given Judge Gorsuch’s impeccable qualifications and the importance of the Supreme Court. And, as the Wall Street Journal argues, they should not negotiate a deal with the Democrats.

If the filibuster on Supreme Court appointments gets “nuked” next week, the Democrats –  captured by the far left – have no one but themselves to blame.

CJ Szafir is Vice President for Policy at the Wisconsin Institute for Law & Liberty. Collin Roth is a Research Fellow at the Wisconsin Institute for Law & Liberty.

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