Well, it’s done. Moments ago the Senate confirmed Neil Gorsuch as the newest associate justice of the U.S. Supreme Court. His ascension to the high court was, of course, incredibly contentious, though not for the reasons it should have been. Democrats failed to mount an effective objection to the jurist’s nomination, settling on a vague, easily rebutted claim that Gorsuch categorically sides with “the big guys” over the “the little guys” in cases where corporate interests run up against individual harms. Even before Mitch McConnell nuked the Senate on Thursday, four Democratic Senators voted with all-but-one Republican to end debate on the nominee.
That fact speaks to the uncomfortable truth that’s been looming over Gorsuch’s consideration since President Trump announced the 10th Circuit judge’s nomination: Gorsuch is indeed a reliable, maybe even hard-line conservative. He seems to have a semi-truck-sized blind spot for claims of “religious freedom,” and his testy refusal to discuss his thoughts on any potential or past case that comes before the Supreme Court is infuriating, if not unprecedented. But in the context of modern American jurisprudence, Gorsuch is hardly an ideologue.
It’s a safe bet that Justice Gorsuch will maintain the conservative 5-4 split of the Court as it existed before Justice Antonin Scalia’s death last year. And indeed, several authors have pointed to Gorsuch’s penchant for incisive, often entertaining writing in his decisions—a characteristic for which his predecessor was famous (or infamous, depending on your perspective).
Was the seat stolen? Absolutely. There’s no excuse for Senate Republicans’ truly unprecedented, year-long filibuster-that-wasn’t of former President Obama’s centrist, equally qualified (and probably less ideological) nominee Merrick Garland. The GOP plainly put party over country, then resolutely refused to admit that’s what they’d done, claiming it was Gorsuch who’d been treated unfairly by a confirmation process that still resulted in his being seated on the Supreme Court. That’s shameful, and belongs near the top of the list of dangerous, un-American shenanigans the GOP has subjected the American people to over the past decade.
But let’s not kid ourselves. A Supreme Court with Justice Gorsuch seated is no more deeply conservative than it was with Justice Scalia on the bench. Despite the apparent similarities between Gorsuch and Scalia, I actually believe Justice Gorsuch’s legacy will more closely mirror that of Chief Justice John Roberts. Both are reliable conservatives, and jurists who have a long-documented tendency to elevate corporate concerns over individual complaints. Roberts, who affirmed the ruling Gorsuch originally drafted in Hobby Lobby, seems to be mindful of his legacy, and, like Gorsuch, generally steers clear of the sanctimonious, sometimes mean-spirited rhetoric that often characterized Scalia’s decisions and courtroom queries. Also, recall that Gorsuch clerked for moderate conservative Justice Kennedy and JFK-appointed Justice Byron White, not Scalia, Rehnquist, or Thomas.
I admit that I would much rather see a Justice Garland completing the nation’s high court than Justice Gorsuch. But, given the almost comically disastrous news flooding out of the White House daily, the nomination of an experienced, well-regarded, if right-of-center jurist feels like a less-than-ideal hill to die on. The real battle will begin when there is another vacancy on the court, which truly does have the potential to shift the balance of power for generations to come. There’s no reason to believe that a second Trump nominee to the Supreme Court would be as unimpeachable as Gorsuch, since we already know well the Braggart-in-Chief’s penchant for pettiness, revenge, and self-serving kleptocracy.
And since making lifetime appointments to the highest court in the land now requires a simple majority vote in the Senate, those who believe in civil rights, individual autonomy, and the equal balance of power in a democratic republic had better get our houses in order and find a better strategy for opposing the next great threat to our way of life.
