Neil Gorsuch heads to a Supreme Court changed by his appointment
Patterns of thought
The Senate voted Friday to confirm Neil Gorsuch. An ugly political fight and the dropping of a 200-year-old rule meant to ensure bipartisan candidates has raised concerns about whether the high court will be perceived as more political.
—The United States Senate confirmed Judge Neil Gorsuch Friday, elevating the Colorado native to the nation’s highest court after more than a year of unprecedented stonewalling by both parties that culminated Thursday in the chamber “going nuclear.”
The decision by Senate Republicans to avoid a filibuster by invoking the so-called “nuclear option” on Judge Gorsuch’s confirmation – lowering the number of votes required to end debate from 60, which typically necessitates some cross-party support, to 51 – is viewed by many as a blow to a chamber designed to moderate the passions of other political branches.
But the blast radius is also expected to reverberate around the Supreme Court itself. Some legal experts fear that scrapping the filibuster for Supreme Court nominees could transform the high court into a political body similar to Congress: subject to the ideologies of whomever controls the White House.
A central concern is that when the White House and Senate align politically, as they do now, more ideological nominees could be confirmed than would otherwise have been possible.
“There would be no check, so why would the worst instincts, if you want to call them that, not play a major role?” says Carl Tobias, a professor at the University of Richmond School of Law who specializes in federal judicial selection.
Not everyone shares these worries, but there is little doubt that there will at least be a stronger perception that the high court is a political instrument. At worst, there is the potential that the law of the land on major social issues could fluctuate between interpretations favorable to liberals at one juncture, and to conservatives at another. And whether future nominees are genuinely more ideological or not, if they are confirmed without any bipartisan support, it could further erode public confidence in an institution for which public confidence is very important.
“The court doesn’t have the power of the purse or the sword, so it has to rely on public confidence as a way of ensuring its judgments are enforced and become the law and are workable,” says Professor Tobias. The nuclear option “makes the justices look more political and partisan, and it may just be impressions but sometimes those make a difference.”
Other scholars aren’t so sure. Dennis Hutchinson, a professor at the University of Chicago School of Law who clerked for justices Byron White and William Douglas, says the public already view, and tolerate, a degree of partisanship.
“The public understands that all Supreme Court justices come to their position with some priors. They’re not partisan in a pure political sense, but they have their views,” he says. “That’s inevitable, and that’s been true from Day 1.”
Senate 'went nuclear' before. What happened?
What happens in the future with the Supreme Court may just be a microcosm of what has been happening in the lower federal courts.
In 2013, Senate Democrats, then in the majority, triggered the nuclear option for lower court confirmations, after Republicans blocked confirmation of former President Obama’s nominees to federal courts. The Democrats lost their majority in the chamber barely a year later, but in that year Mr. Obama confirmed 15 federal appeals court judges, securing or consolidating majorities of Democrat-appointed judges in nine of the 13 federal courts of appeal. He also made the federal judiciary more diverse than it has ever been.
The broader effect of an eight-year Democratic presidency was to establish a bulwark of lower court precedent in favor of liberal causes. Obama appointees played pivotal roles in the 4th Circuit striking down North Carolina’s voter identification law as intentionally discriminatory and ruling in favor of a transgender teenager seeking access to the boy’s bathroom, as well as the 9th Circuit ruling earlier this year against President Trump’s travel ban.
“Federal courts of appeal are the fundamental judicial lawmakers in this country,” says Professor Hutchinson.
The Supreme Court’s 2015 ruling affirming the constitutionality of same-sex marriage, for example, was a fait accompli, he says, “because it had been decided so many times in lower federal courts.”
But with Trump now in office, and backed by a GOP-controlled Senate, the lower courts could be poised to swing back to the right. In fact, combining vacancies with possible retirements, Trump could appoint more federal judges than any first-term president in 40 years, The New York Times reported.
More 'radical' nominations?
The question of future high court vacancies also looms large.
“Do away with the nuclear option now and the president simply has no incentive to appoint someone who is mainstream – as I believe Neil Gorsuch is,” says Professor Hutchinson.
Instead, a Republican president may nominate someone like Judge William Pryor from the 11th Circuit Court of Appeals, who was reportedly passed over in favor of Gorsuch in part because of his outspoken opposition to Roe v. Wade, the 1973 decision legalizing abortion, says Christopher Banks, a political scientist at Kent State University.
"He would be one of more ‘radical’ nominations that would easily go past the Senate and not get any confirmation from the other side at all, or any attempt to reconcile it," he says.
But it goes both ways, Professor Banks adds. "At some point this will come back as political times change, as they invariably do … Democrats are always going to remember what’s gone on here."
'One of the biggest decisions a president makes'
The gravity of the high court could make it tougher to shift its ideological bent too severely, some historians believe.
“I think it’s easy to overstate the degree to which a president would be unconstrained in vacancy fights,” says Tom Donnelly, a senior fellow at the National Constitution Center.
The potential for a strong negative public reaction could deter a president from that kind of nomination, and so could opposition within his own party.
“It’s one of biggest decisions a president makes, one of most memorable ones, and one people are thinking about in the voting booth,” says Mr. Donnelly. There also could be a “critical mass of moderate senators who are deciding votes who could constrain who a president puts forward.”
Much will also now depend on the individual presidents and nominees. A president could still desire bipartisan support for his nominee even if it’s not required, while history has shown that it can be difficult to predict how a justice will rule after they’re confirmed. David Souter, a George H.W. Bush appointee, often sided with the court’s liberal wing, while Justice Anthony Kennedy, a Ronald Reagan appointee, is the court’s most consistently moderate justice.
And there is the possibility that, for the individual justices, the reputation of the court as being a neutral arbiter of the law above the political fray will be more important to them than their personal ideologies.
“There is the danger that the public will in the future perceive the court as simply just another political institution, and for many of the justices – including [Chief Justice John Roberts], who jealously guards the reputation of the court – I would imagine that would be something of concern to them,” says Donnelly.
“I think, and hope, that for the public, [the court] can live up to the ideal of being a nonpolitical, well-functioning institution, an institution that’s above politics,” he adds.