I did some mental gambling the other day; attempting to predict Trump’s Supreme Court nomination. Using the power of my “little grey cells” I selected the Justice who seemed to carry the same extreme ideology and brand of conservatism that only sees the world in black and white: Justice William H. Pryor Jr. of Alabama. Much to my and many others surprise we saw the nomination of Justice Neil Gorsuch. (As a result I actually had to rewrite most of this post, which I had written in preparation for the announcement). A fairly good article from the New York Times discusses further about Justice Gorsuch’s particular brand of conservatism, background and personal style…all of which is not as intimidating as I had initially been expecting (even considering that he would be one of the most conservative justices on the bench).
What does this mean for American Civil Liberties? Truth be told, I’m not nearly as pessimistic as I was prior to the announcement. Yet, I won’t stop holding my breath. Presently the Supreme Court is split down the center by way of Liberals and Conservatives on the bench and the appointment of another highly conservative justice to replace Justice Scalia could tip the scales in favor of the Republicans. I would, however, argue that in the wake of the controversy of his most recent executive orders, the Trump Administration has opted to maintain the status quo of the Supreme Court by replacing one conservative with another conservative…though not a radical hardliner (at least not a radical in my mind…but who knows what the future holds).
Why does the Supreme Court Matter so much? This appointment, and any future appointments, will be Trump’s most lasting legacies. Not only that, as for as The Law goes (Capital T), the Supreme Court is the final word…the highest authority in the land and their decisions have shaped our nation into the country it is today.
Why Worry? In the ideal world the job of establishing legal precedent is a duty that should be independent from partisan divisions. In an ideal world the highest court of the land takes existing legal precedents, facts and a scholarly analysis of the constitution into their decision making process. In an ideal world justices should interpret the constitution with the present and future in mind. In an ideal world justices should eschew their personal biases in favor of empirical evidence, reason and logic. Sad to say our world is not an ideal one. Justices are people as well and can be governed by their biases, prejudices and loyalties. This holds true along the full length of the Supreme Court bench, including liberals and conservatives alike.
Is it hypocrisy that in this time of transition from a liberal, progressive presidency that we are in uproar over the appointment of a conservative justice? Perhaps. This is a part of presidential elections and something that we have experienced in the past. Yet, I feel that the longstanding tradition (not law or regulation mind you…tradition) of stare decisis (the court’s willingness to stand by previous court rulings) will be put to the test. Yet again, it may seem hypocritical in the eyes of the conservative reader because the Supreme Court went against previous rulings to overturn segregation.
Despite this lingering sense that conservatives are being persecuted for having “won” the election, “winning” is not an endorsement to for the “victors” to act with carte blanche. The current theme of “we won, you lost, deal with it until it’s your turn!” is detrimental to our society and democracy as a whole and damages any attempts to repair the rifts from a divisive year of presidential campaigning.
The two most prominent court decisions that could prove to be the most hazardous to the health of civil liberties in the United States is the prospect of an overturn of Roe vs. Wade (legalization of abortion) and Obergefell vs. Hodges (the recognition of gay marriage). For myself, I do not fall within either demographic that these rulings have an impact on…yet, I recognize the significant ramifications that a repeal of either would have on the fabric of American tolerance and freedom as well as to the personal lives of ordinary American citizens simply living their lives.
So…will the Democrats filibuster? More importantly, should they? While I feel that it is essential that we stand for our convictions and our duly elected representatives do their duty to represent and protect those they represent with the utmost zeal and commitment, I feel that the democrats need to be cautious in their approach. A strategic usage of political capital has never been more critical in a time when the Democrats and other progressives have found themselves outnumbered by the hardline conservatives in the senate. A factor that needs to be considered as well…what if Trump has other Supreme Court nominations ahead of him. Justice Ruth Bader Ginsberg is closing on 84 and Justice Anthony Kennedy (while appointed by Reagan, has proven to be a progressive conservative upholding sexual orientation rights and abortion) is 80 and has indicated desires to retire. Under such circumstances the balance of jurisprudence in the highest court of the land could be indelibly tipped in favor of hardline conservatism. Filibustering to get revenge on the Republicans for their filibuster is not sound logic. Read some varied positions and thoughts on the matter and on Gorsuch in this CNN article. Would it not be wise to accrue the necessary political capital at such a critical junction?
I can’t honestly answer that particular question with any real authority. As an informed and impassioned amateur, I am (at the end of the day) still and amateur. I see the merits of either strategy. Regardless, the need to make such strategic decisions is the result of a political scenario gone horribly awry and it is essential that the Democrats tread carefully and select the battles they fight.
There is pervasive fear that we are all feeling that our nation has and is continuing to take several steps backwards and will require years if not decades to repair once this waking nightmare has come to a conclusion.
What are your thoughts? Is my pleasant surprise too laissez faire? Or am I being an alarmist? I try not to exist within an echo chamber and welcome feedback.