by Maggie Gallagher
I listened to Sen. Chris Coons (D-Del.) explain why he was going to vote against cloture and thus force the Senate to change its rule permitting 41 senators to stop a Supreme Court nomination:
I am not ready to end debate on this issue, so I will be voting against cloture unless we are able as a body to finally sit down and find a way to avoid the nuclear option and ensure the process to fill the next vacancy on the court is not a narrowly partisan process, but rather an opportunity of both parties to weigh in and ensure we place a judge on the court who can secure support from members of both parties.
It’s like being in a time-warp alternate universe. Let me give you two reasons why there is not plenty of blame to go around for this. Liberals have made the Supreme Court a deeply partisan issue.
1.) Judge Robert Bork. A former solicitor general, a Yale law professor, a distinguished federal appeals court judge, and a thoroughly decent and good man whose only sin was that he was one of the most prominent legal intellectuals defending what we now call originalism: the law and the Constitution mean what the legislators (or the Framers) said and thought it meant when they passed it.
Any other general doctrine of legal interpretation, he pointed out, makes democracy almost impossible. If legislators’ intent doesn’t govern judicial interpretation, what meaning does democratic consent have? Of course, it’s not always obvious. That’s why we need judges to hear the evidence and interpret it fairly and fearlessly. There will be hard cases. Honest and brilliant judges will sometimes disagree. That’s what the Supreme Court is for.
And yet, let us never forget how Sen. Ted Kennedy, the leading liberal Democrat of that time, trashed Judge Bork’s reputation: “And I’m also proud of the role of the Senate in ensuring Supreme Court nominees adhere to the tradition of fairness, impartiality, and freedom from bias. I believe the American people strongly reject the Administration’s invitation to roll back the clock.”
The Democrats’ decision to block Judge Bork for being a judicial conservative was the moment fairness and tradition became the ideal of only one of the two parties. That’s a situation any game theorist will tell you cannot last. Indeed, it was the Democrats who changed the rules for lower court nominations and Sens. Harry Reid and Chuck Schumer who agreed when they controlled a slim majority that they would not permit a filibuster to block President Obama’s nominations.
There is nothing in the Constitution that says a minority of senators get the power to block a nominee like Neil Gorsuch. The internal rules of the Senate cannot be allowed to become more important than the Constitution itself.
2. Liberalism uses the Court to block democracy. Over and over again, liberals have used their dominance in the academy to develop legal theories that permit the Court to override democracy on controversial social issues. The 14th Amendment was written to end slavery and guarantee equal justice on race. It has no bearing on whether or not it is okay to take the life of an unborn child (much less that it is a constitutional right) or on whether every state in the union must recognize same-sex marriage.
The Democrats are responsible for a reduction in the radius of reasoned argument in democracy by using courts to privilege their own views and block the legislative, referendum, and democratic processes.
They cannot expect President Trump or the GOP-controlled Senate to have more fidelity to traditional Senate rules than respect for constitutional democracy itself.
Photo credit: Senate Democrats via Flickr, CC BY 2.0