Event: Gorsuch Appointed to Supreme Court

May 11, 2017

 

On April 7, the Senate confirmed Neil Gorsuch to the Supreme Court, with three Democrats voting in favor. The confirmation retains the conservative majority on the Court and probably represents President Trump's most significant political accomplishment in his first 100 days. Judging from Trump's inauguration onward, nothing would appear amiss in the confirmation, with the exception of the Senate abandoning its filibuster rules. Trump himself followed political norms and Gorsuch is a traditional conservative pick.

 

Nevertheless, the entire appointment process from Antonin Scalia's death in February 2016 onward represents a dangerous politicization of the judiciary and an alarming violation of political norms. The GOP-controlled Senate refused to vote on President Obama's Court nomination, Merrick Garland. This produced the longest nomination period in the Court's 228-year history and the second-longest seat vacancy since 1900. Moreover, several Senators warned that they might keep the seat vacant another four years if Hillary Clinton was elected.

 

Debate exists as to whether this refusal to vote was an unconstitutional violation of the Senate's duty to "advise and consent" to Court nominations. Yet the real danger lies in the violation of norms surrounding the Court and its increasing place as a battleground of polarized politics. The proposed idea that the Senate would refuse to even acknowledge a Court vacancy for up to five years is entirely without precedent. Further, the episode solidifies the Court's image as just another partisan political issue.

 

Granted, this was hardly the first time that politics interfered with the Court in American history. James Buchanan put political pressure on Court members to affirm the Dred Scott decision in 1857. John Tyler didn't bother to nominate anyone for a vacancy given the Senate's antipathy toward him. FDR engaged in his questionable Court-packing scheme, which had the ultimate effect of cowing anti-New Deal justices. Yet few would regard these episodes as high points of American democracy.

 

Further, the hyper-politicization of the judiciary fits a worrisome pattern seen in other cases of democratic decline, including Venezuela, Ecuador, and Nicaragua. In each case, the judiciary was increasingly seen as an extension of dominant party power, with grievous effects on judicial independence, institutional trust, and democratic quality.

 

Perhaps because of the widespread expectation that Hillary Clinton would win in 2016, the blockade was not treated with as much significance as it should have been by the mainstream press. Moving forward, observers should pay close attention to attempts to influence or obstruct the judiciary at all levels. At the core of American democracy is trust that courts serve the rule of law and not partisan objectives.

Michael K. Miller is an Assistant Professor of Political Science at George Washington University.

 

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