Supreme Malarkey

There is a lot of malarkey swirling around about the Supreme Court nomination of Neil Gorsuch and I just wanted to explore a couple of aspects of it with my readers today, (thanks again for the “save” Joe!).

Many, even on the left, are saying that Gorsuch taking a seat on the Court doesn’t affect the “balance of power” because it is a “conservative” (Gorsuch) replacing a “conservative” (Scalia). (I put the word conservative in quotes in the preceding sentence because I feel both are right wing radicals, not true conservatives.) This is incorrect on one count and very misleading on another.

The misleading part is that Gorsuch would be replacing Scalia. I contend that Gorsuch would be effectively replacing Merrick Garland. Garland should have gotten hearings and a vote. The reason Mitch McConnell wouldn’t bring his nomination to the floor is because it would have been approved. By not bringing the Garland nomination to the floor he gave his Republican Senate caucus cover. In the process he rolled the dice that the Republican candidate would win and got lucky when Trump did. The only thing he risked is that Hillary Clinton would win and nominate someone more liberal than Garland.

Ronald Reagan taught us that age is a factor with federal judges who receive lifetime appointments. Most Supreme Court Justices retire or die at about the age of 80. Scalia was 79 when he passed away. So from an actuarial standpoint he was at about the end of his “Supreme Court lifespan”. Assuming Gorsuch is confirmed, (and I think that is a probability), he will be taking his seat on the Court at age 49 effectively adding 30 years to Scalia’s term. Odds are I will die before Gorsuch leaves the Court.

As of this writing it is all but certain that the Democrats will filibuster Gorsuch. McConnell is committed to changing the rules of the Senate to eliminate the filibuster for Supreme Court nominees. It remains to be seen if he will go through with that and if his caucus will follow him. The smart money is betting yes on both counts.

A popular argument, even among those on the left, is that the Democrats should save the filibuster for a possible opening do to the death of one of the liberal justices. It is basically a “balance of power” argument which I refuted above. Also, if McConnell is willing to go nuclear on this appointment what makes anyone think he would balk if the opportunity to replace, say Justice Ginsburg, presented itself?

I support Senator Schumer’s decision to filibuster Neil Gorsuch. I doubt that it will ultimately prevent Gorsuch from being confirmed but it further exposes McConnell and the Republicans for being the constitutional hypocrites they are. Hopefully (but doubtfully) that will resonate with the voters.

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