People, can you just chill a bit over court nominations, please?


So Trump nominated someone last night for the Supreme Court, and it looks like he had good advice and listened to it for a change: I’ve seen no indications at all that this Gorsuch guy is anything other than a qualified jurist. Which means that, in a rational world — barring currently unknown problems coming to light — his confirmation should be routine. Which would be welcome; we have enough turmoil in our public life at the moment.

But then, I read this main story (there were many sidebars) about the nomination in The Washington Post:

President Trump nominated Colorado federal appeals court judge Neil Gorsuch for the Supreme Court on Tuesday, opting in the most important decision of his young presidency for a highly credentialed favorite of the conservative legal establishment to fill the opening created last year by the death of Justice Antonin Scalia….

WHAT?The most important decision?” In what way, in what sense, in what universe completely lacking in any sense of proportion?

To keep it simple, let’s just consider three things this “young presidency” has done that are much more far-reaching in likely effect:

  1. Pulling out of TPP. This has disengaged America from the Pacific Rim, and invited the accelerated rise of China, in a way that is likely to have staggering consequences in this century both for us and for the billions of others affected — economically, strategically, culturally and almost any other “-ly” you care to name.
  2. Sticking a finger in the eye of every Muslim on the planet. Never mind the momentary unjust treatment of 90,000 or so individuals from Muslim countries, or the unconscionably inhumane “no” to refugees. This has indelibly engraved in a billion or so people’s minds that America regards them and their faith as the enemy, the one impression that our last two presidents have gone out of their way to avoid giving, even as they prosecuted the War on Terror.
  3. Naming Gen. Mattis as defense secretary. Just as Gorsuch’s appears to be, this was one of Trump’s rare good calls. Deciding upon such a qualified leader for our military at a time when the world is so unsettled and there are so many places where things can go really wrong really quickly was of the utmost importance. But it was also an historic precedent, since we had avoided naming recent generals to that post for my entire life. (By contrast, presidents have named LOTS of Supreme Court justices who have come and gone in my life, and none of them held immediate sway over the immense power of the U.S. military.)

Speaking of Mattis — despite the semi-Constitutional issue his nomination raised, an issue worthy of respectful consideration, but not one that should have been an obstacle in light of his qualifications, and of the nation’s desperate need of some qualified people at this point in our history — all but one senator had the good sense to confirm him.

And if our nation had good sense, something similar would happen with Gorsuch. Will it?

No, of course not. As another piece in the Post, by the venerable Dan Balz, noted:

The coming fight over his Supreme Court nominee will be fiercer than before.

Yes, it will. Else we would all be shocked. (I, for one, would be pleasantly surprised.) And what is likely to happen will be an utter waste of energy in a time when political capital needs to be saved for so many other more important battles.

My attitude toward Gorsuch is exactly the same as it was toward President Obama’s pick for this seat, Merrick Garland. They were both qualified for the job. They had already been vetted; they had already proved themselves. They had the requisite knowledge and experience, and reputations for probity and good judgment. There were detectable differences in judicial philosophy — differences that in a calm, proportional world would matter only to legal scholars. But both were qualified for the job — far more qualified than most people elected to Congress, for instance.

Whether one or the other was confirmed is not the Ultimate Issue. It’s not Armageddon.

Here’s the way I see it: The vast, vast majority of times the Court decides cases with wisdom and with ultimate respect for the law and for our civilization. Most decisions are unanimous — which seems remarkable to this layman, since the court deals mainly in matters lower courts were unable to settle conclusively. This has been the case over the decades, no matter whether the majority of the court is labeled “liberal” or “conservative.” Controversy exists only in a minority of cases, and most of those are at least decided intelligently, even if not the way you or I would prefer.

This has been true my entire lifetime.

To me, this testifies to presidents and senators having done a phenomenal job of picking good, qualified justices. The political branches have a much better record in this than in any other area I can think of.

Am I unhappy with some of the decisions? You bet. My opposition to Roe v. Wade is well documented here. I object not only to its legalization of abortion, but to the devastating effect that decision has had on our national politics — specifically, to exacerbating the very problem that I’m on about in this post.

(Considered logically, I am if anything even more opposed to the absurd precedent upon which Roe is based — the Griswold decision, which magically “discovered” an absolute right to privacy hiding in the shadows of the Constitution, a right that had somehow gone unnoticed in the nation’s previous 189 years.)

Today, in part because of Roe, we have vast numbers of people — thousands, if not millions of Americans will vote for a president based largely if not entirely on the basis of what sort of justices he or she is likely to name — “liberal” or “conservative.” Which is insane, given the far more immediate and far-ranging powers of the presidency. A president has the power, at every morning of every day, to make decisions that could lead to the destruction of all human life on this planet — and yet people will actually let their vote be decided on a narrow range of factors involved in a decision the president might make once, or maybe twice, in a four- or eight-year period.

It’s ridiculous. It’s far out of rational proportion.

Of course, since I’ve described the devastating effect of that one decision on our nation’s politics, you might say judicial nominations should be treated as seriously as they are. But no. That decision was an aberration. The number of bad decisions made by presidents in the same period of time since, say, Plessy v. Ferguson or Dred Scott is far, far vaster. Which argues that we ought to devote more of our attention and political energy on the 99.999 percent of what a president does, and less on this one.

Maybe Dan Balz and other experienced observers are wrong — just as they were wrong about Trump’s electoral chances.

Maybe the enormity of what Trump is doing in virtually every other area within his authority will shock our political players into having a sense of proportion. Maybe they’ll save their powder for the big battles that must be fought, some of which (who knows?) might even be won by the forces of reason. Maybe this confirmation will be as routine as it should be, as most of them should be.

But I doubt it. There is a vast infrastructure of political advocacy out there that exists purely for fights such as this one. And both political parties are closely wedded to those interest groups, and fearful of not doing their bidding with utmost zeal.

We’ll see…

24 thoughts on “People, can you just chill a bit over court nominations, please?

  1. Bryan Caskey

    I’ll carry the previous question over here: What do y’all think the Democratic Senators ought to do? I think bud has come out for the hard-line position of filibuster and make the GOP use the nuclear option to get rid of it – which they would certainly do.

    I agree with Mark that doing so is bad strategy. It will remove the last obstacle in the path of the Senate being a hurdle for future things. If the GOP is forced to nuke the filibuster now, they won’t even have to deal with that question next go-round – it will already be done.

    1. Bart

      Apparently Trump has already encouraged using the nuclear option if the Senate tries to stall Gorsuch’s
      approval. You might get your wish bud. Talk about irony, bud and Trump agree on something. The earth may spin out of orbit.

  2. Lynn Teague

    I’m not sure what the Democrats should do at this point. However, I am reasonably certain that “political capital” doesn’t really exist at this point in any meaningful way . It isn’t all Trump’s fault. The decision not to consider Obama’s SCOTUS nominee was evidence of a scorched earth power-seeking policy that doesn’t consider niceties like political capital. It is likely that choosing not to fight the nominee would get the Democrats nowhere.

    1. Brad Warthen Post author

      Probably not. Of course, personally, I don’t care where the Democrats get to.

      But if they’d like to make themselves useful, it would be great if they’d save their powder for the other issues where opposing Trump is more urgent, and more likely to have an effect — there are going to be a LOT of them.

      Fighting a rear-guard action on this would send the signal of Partisanship as Usual. And with Trump in the White House, we don’t have time for that stuff…

      1. Lynn Teague

        I should have specified “get the Democrats nowhere . . . that would help them accomplish anything useful.” As you know Brad, I don’t regard the wins or losses of parties as important goals in themselves. However, the current power imbalance isn’t healthy for the country, given the apparent contempt of the group in power for everyone who disagrees with them. The opposition party, the media, everyone who doesn’t agree is the enemy, not fellow citizens with whom one would hope to find common ground.

        1. Bryan Caskey

          “However, the current power imbalance isn’t healthy for the country, given the apparent contempt of the group in power for everyone who disagrees with them. The opposition party, the media, everyone who doesn’t agree is the enemy, not fellow citizens with whom one would hope to find common ground.”

          Using this as your metric, our body politic hasn’t been healthy for quite a while.

          Does anyone else feel like our political parties are just at a point where differences are irreconcilable? I just don’t think there’s any room for compromise. We’re on a path that keeps escalating the tactics, and both parties keep violating established norms. I hold out no hope for actual compromise or mutual agreement.

          It’s just going to be a whipsaw back and forth between extreme ends of the spectrum who are going to do anything they can, when they can, and get away with as much as they can. No one’s clean. No one’s innocent.

          Turning and turning in the widening gyre…

            1. bud

              The CURRENT Republican party needs to go. False equivalency falsely makes the two parties seem equally culpable. That is nonsense. Just remember Donald Trump is the leader of the Republican party. The Democrats are essentially leaderless. The GOP owns this mess we’re in. The false equivalency warriors are enablers who have to share some of the blame for Donald Trump.

              1. Bart

                “The Democrats are essentially leaderless.”

                One question. Why are Democrats essentially leaderless?

                1. Brad Warthen Post author

                  And consider this as well: The Republicans are utterly devoid of leadership as well. That was amply demonstrated this past year. That’s how Trump took their nomination, something that in a rational universe should have gone to a Republican…

                  1. Brad Warthen Post author

                    I complain about the utter uselessness of parties all the time. And they ARE useless as they currently exist.

                    There is only one useful function that empowered parties MIGHT perform: If their leaders can say “yes” or “no” to potential candidates, and have that stick. The smoke-filled room, so to speak, only preferably without the smoke.

                    If we had parties like that, Donald Trump would have remained the joke he was in the summer of 2015. And while this would not be as inevitable, it’s even possible real Democratic leaders would have stood up and said, “No, Hillary, you’ve just got way too many negatives that are going to kill us if the Republicans pick anybody halfway decent.” (Which the GOP would have done, with empowered leaders.)

                    That would have been tough even with strong bosses, because (I think; but can’t know) such bosses would tend to be people who respect when it’s the “turn” of somebody who has paid the dues, which she certainly had done.

                    But if they DID turn her away, they might have been able to persuade Joe Biden to run. He might have said yes if he had known there would be no internecine fight. And of course, most of us still wouldn’t know who Bernie Sanders was.

                    With a scenario like that, though, I’d like to think the bosses would have been bringing along some young talent and wouldn’t have to ask ol’ Joe to fight one more battle for them.

                    And who would the GOP candidate have been? Probably Bush or Kasich or Rubio, depending on whether the bosses were in the mood for fresh blood or not. Or maybe Christie, who if you’ll recall was something of a man of respect before he sold out to Trump (for nothing). But more likely Bush or Kasich or Rubio.

                    In any case, with parties that were worth two cents, we wouldn’t be in the fix we’re in today; that’s for sure…

          1. Norm Ivey

            Turning and turning in the widening gyre…

            Nice–much more subtle than slouching towards Bethlehem… or The center cannot hold…

          2. Brad Warthen Post author

            Looking back at this old thread, I am shocked to see that Bryan said “widening gyre,” and I didn’t respond with something like

            The best lack all conviction, while the worst
            Are full of passionate intensity.

            My apologies!

            1. Brad Warthen Post author

              That is definitely one of my all-time favorite poems. Perhaps THE favorite among poems that make political points. The first time I read it through, I was stunned at the way Yeats made points I had struggled to make myself about politics in my own day…

              Another Yeats piece I’m partial to is “An Irish Airman foresees his Death…” It’s got a great rhythm, although I can’t say it’s easy to dance to..

  3. Brad Warthen Post author

    FYI, the SC Democrats have decided to go with Partisanship as Usual. Which, as our new president would say, is sad…

    Columbia, SC – South Carolina Democratic Party Chair Jaime Harrison released the following statement on President Trump’s nomination of Judge Neil Gorsuch to the United States Supreme Court:

    “The judge nominated by President Obama for this Supreme Court seat, Merrick Garland, was called ‘a consensus nominee’ by Senator Orrin Hatch. But Senate Republicans refused to even give him a hearing; Mitch McConnell said, ‘Let’s let the American people decide.’ Well, by a margin of almost 3 million, more Americans chose Hillary Clinton over Donald Trump to fill this seat. So President Trump would have been wise to choose a consensus nominee like Merrick Garland. But given Trump’s radical actions since the start of his presidency, we should not be surprised that he has chosen a judge whose record favoring big corporations and opposing civil rights suggests that he is a right-wing zealot. Unless the hearings somehow reveal that Judge Gorsuch’s extreme record will not continue on our nation’s highest court, bring out the cots for a filibuster.”


      1. Brad Warthen Post author


        That looks like they just copied and pasted it out of a template in the Democratic Party playbook, rather than looking at who Gorsuch actually is… “This is what we say about ALL of ’em!”

  4. bud

    Like Kenny Rogers once said “walk away from trouble when you can, but sometimes you have to fight to be a man” This is the time to fight. The filibuster will be gone eventually but this is a good time to use it while the court is divided 4-4. Delay as long as possible and get a few rulings in if that is possible. It may even work out that a couple of Republicans will refuse to get rid of the filibuster. The Democrats have kept their powder dry so long it’s probably gotten old and may not even work. THIS is the fight and NOW is the time.

Comments are closed.