When the Democrats launched a filibuster against the confirmation of Judge Gorsuch to the Supreme Court, some claimed that it was only nasty revenge for the refusal of the Republicans in 2016 to vote, or even hold hearings, on the nomination of Judge Merrick Garland. The comparison is not apt.
Judges Gorsuch and Garland are both highly gifted members of the U.S. Courts of Appeals, judicial offices second in rank only to the justices of the Supreme Court. There the similarity ends.
As people talk about “lawyers’ lawyers” — attorneys of such skill that other lawyers seek them for representation — we might paraphrase that Judge Garland is a “judges’ judge.” As the chief judge of the Court of Appeals of the District of Columbia Circuit, he hears the most important cases of national significance. In choosing a nominee, President Obama steered down the middle. Judge Garland is not on either the far left or far right. According to the Philadelphia Inquirer, he is “known as a moderate-to-liberal jurist with a pro-prosecution bent in criminal matters.” He is considered progressive on human rights but a centrist politically.
Judge Garland is not a judicial activist. On the Court of Appeals, his decisions fall well within precedent. As chief judge, he has the duty to administer not only cases, but also his fellow judges. Messy problems within the Circuit and even from across the country seem to gravitate toward Judge Garland, and he has handled them with great success.
President Trump, by contrast, reached out for the farthest right candidate that he might find anywhere on the federal Courts of Appeals. A letter by Sen. Bob Casey, reprinted by The Philadelphia Jewish Voice, points out important themes in the rulings of Judge Gorsuch that trend far right, to which others can be added:
- Substituting his own judgment to overrule decisions of the Department of Labor seeking to uphold worker safety.
- Although claiming to follow precedent, he resists the line of cases since the Roosevelt administration, deferring to regulatory agency judgments.
- Slavishly supporting the judgments and practices of management in dealing with workers.
- Rendering contorted, extreme judgments that minimize and undermine the effectiveness of social welfare programs.
His extreme rulings have earned the disapproval of his fellow judges and, on occasion, of the justices of the Supreme Court. Under the circumstances, a filibuster was no more than an appropriate response by liberals to the challenge his nomination presented.
Several democratic leaders, including Sen. Elizabeth Warren (D-Mass.), called for delaying the confirmation vote for Judge Gorsuch until the investigation into Russian interference in the presidential election has been completed.
According to David Leopold, writing at thehill.com, in February, 2016:
Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust — the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.
The Republicans employed the nuclear option, eliminating the 60-vote requirement for overcoming a filibuster in the confirmation of Supreme Court justices. Dan Loeb, publisher of The Philadelphia Jewish Voice, warned, “Bending the law to get in Trump’s appointee among the highest arbiters of the law would leave the judge tainted by partisan politics for decades to come, especially if any of the alleged Trump scandals come to be decided at the Supreme Court.”
On Monday, April 3, Democratic National Committee chair Tom Perez released a statement: “It’s plain and simple: Gorsuch has not earned the votes in the Senate to join the Supreme Court,” he said. “Republicans can’t fix Gorsuch by changing the rules. They need to change the nominee.” Unfortunately, it’s now too late for that.