06 April 2017


When U.S. Supreme Court Justice Scalia died, President Obama appointed a moderately liberal successor, Judge Garland. The Republican controlled U.S. Senate refused to consider the nomination which lapsed when that term of Congress ended and President Obama's term ended in January of 2017.

President Trump then nominated Judge Gorsuch, of the 10th Circuit, to fill the vacancy. Democrats successfully filibustered a vote on the nominee with a 45 votes cast against a cloture vote (including Colorado Senator Bennet who was an earlier supporter of Gorsuch in the confirmation process and introduced him) when 41 or more votes cast against cloture would be sufficient sustain the filibuster.

The thin Republican majority then voted to abolish the filibuster for U.S. Supreme Court judges just as Democrats had earlier for other judicial positions. Today or tomorrow, Judge Gorsuch with be confirmed as Associate Justice of the U.S. Supreme Court.

The filibuster still remains on the books for most ordinary legislation in the U.S. Senate, but the taboo against repealing the filibuster with the "nuclear option" already used to end the filibuster for essentially all Presidential appointments requiring Senate approval is gone, greatly weakening the filibuster as a tool of the minority in the Senate.

The fact that we will have a 5-4 conservative majority on the U.S. Senate (just as we did before the death of Justice Scalia) rather than the 5-4 liberal majority on the U.S. Senate that we would have had if President Obama's nominee, Judge Garland, had been approved, is deeply unfair. But, it will soon be the reality.

The fact that the filibuster is effectively dead, from a good government perspective, is probably a good thing, although arguably it made the most sense to keep it for U.S. Supreme Court Justice nominations which have such profound long term policy implications and arguably ought to be reserved for someone who can command bipartisan support. Still, the filibuster made it virtually impossible for even a party in control of both houses of Congress and the Presidency, as the Republicans do right now, to accomplish anything and it diffused responsibility for governmental action leaving voters with less of a clear choice come election time.

The end result of this particular chapter in the history of the U.S. Supreme Court and Congress is that Justice Kennedy will hold the critical swing vote needed to secure a majority on the U.S. Supreme Court, just as he did before Justice Scalia passed and just as he did when there was an eight member U.S. Supreme Court in the interim period.

Justice Gorsuch values civility far more than Scalia did, and is far less of an asshole as a person than Scalia was during his life. On one hand, this probably means that Justice Gorsuch will probably be less prone to mean spirited rants, unnecessary attacks in opinions, and strident statements than Scalia was, despite the fact that Gorsuch will be firmly within the conservative wing of the Court, so at least in demeanor and rhetoric Justice Gorsuch will be more like Chief Justice Roberts and less like Justices Scalia, Thomas and Alito. On the other hand, because of his better manners and superior people skills, Justice Gorsuch may have more influence in swaying other members of the U.S. Supreme Court (and with swing vote Justice Kennedy, in particular) than his often alienating predecessor to take more conservative stances on the merits of key issues before the Court.

Time will tell how his role on the Court evolves. Certainly, he is not someone bent on destroying the institution to which he has been appointed, unlike so many other of Trump's appointments. But, the real course correction at the U.S. Supreme Court will happen when another Justice passes or steps down and is replaced with someone with opposite political inclinations. We don't know which Justice this will be, or when it will happen, but given the ages of the eight sitting Justices, it will surely happen before too many more years go by.

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