How Much Will Neil Gorsuch Really Change The Supreme Court?

From a conservative point of view, the nomination of Neil Gorsuch to the Supreme Court was a huge deal, because of both his solid originalist record on the 10^th Circuit bench and the seat on the high court that he was destined to fill. For conservatives to preserve the center-right status quo that has more or less endured on the Court since the early 1990’s, it was vital that someone at least as committed to the Constitution as Antonin Scalia be nominated and confirmed to the vacancy.

But for liberals, the stakes were much lower—despite the fact that Democratic senators were howling left and right that if Gorsuch was confirmed, it would mean the end of the republic as we know it. Liberals have survived the past two decades with a Court nearly identical, ideologically, to the one that will soon take shape, once Gorsuch begins hearing cases. They’ve even gotten a few wins—the survival of Obamacare, the nationwide legalization of gay marriage—out of the equation.

Which is why I continue to struggle to understand why Chuck Schumer and the rest of the Democratic caucus in the Senate felt it was worth sacrificing the filibuster for high court nominees in a fruitless effort to prevent Gorsuch’s elevation. Why make the replacement of one conservative justice with another the hill to die on, rather than waiting and saving ammunition for the next vacancy, when Democrats could well be confronted with the idea of Donald Trump replacing an outspoken liberal with a conservative?

Others, many others, have asked the same question since the announcement of Gorsuch’s nomination. The likeliest answer seems to be that the Democratic base was exerting so much pressure on members of Congress to oppose Trump and his nominees at every step, that Democrats were cowed into doing what in their hearts they knew was strategically stupid. Sure, if Democrats had saved their fire until Trump’s next Court pick, the same end result would probably have occurred—the filibuster would have been gutted, and the nominee would have been confirmed. But in that case, liberals would have had more public credibility from keeping their opposition to Gorsuch low-key, and their hysterical opposition would have been more believable—translating to greater public support, as opposed to now, when that opposition is easier to see as more of a reflexive rejection to anything Trump-related, no matter the circumstances.

Gorsuch and Scalia are different people, no doubt about it. There is evidence to suggest that on some issues, Gorsuch may actually be a little to the right of Scalia. And the former’s relative youth ensures that, absent sudden circumstance, he could well be deciding cases for decades to come. But overall, Democrats’ decision to go all-in on opposition to Gorsuch, rather than saving ammunition for later, was pretty shortsighted of them.

Incest & Group Marriages: The Next Big Thing

Ten years ago, it was the fight over gay marriage that got most of the attention in the culture wars. The idea of a man marrying another man, or a woman marrying another woman, was radical and extreme. It was unthinkable that there could be an issue related to marriage that was more divisive.

Then, in 2013 and again in 2015, the Supreme Court declared same-sex marriage to be not only permissible, but a fundamental right guaranteed by the Constitution. The culture largely accepted the idea of same-sex couples. The public moved on. And liberal marriage advocates were left looking for other causes.

The twin issues of incestuous marriage and group marriage are on track to become the next great causes of the cultural progressive movement. They have not gained widespread attention up until now, because even in today’s culture the idea of a parent having relations with their own child, or a group of people becoming legally married to each other, is still seen as bizarre and disturbing.

But mark my words—these causes will soon become the “next great civil rights struggle”. Who are we to say that true love and commitment can only exist between two people? Who are we to say how mature adults live their lives, and want their love to be recognized by society? Who is society to judge whether mature blood relatives can feel romantic love toward one another.

These two cases (fair warning: don’t click the links unless you’re prepared to be disturbed), and others like them, are the beginning of the coming movement. It may not strike in earnest for a while. But, if history is any indicator, the time is coming.

Seriously. Why Do Gays Get So Much Press?

There are no firm numbers, but according to one estimate the number of people in the United States who identify as gay or lesbian is less than 10% of the total population.

According to other estimates, those who identify as transgender are even fewer—less than 1% of the population. Other elements of the LGBTQ+ alliance number even less.

Which is why it’s so interesting that issues of sexuality and “alternative gender”currently take up so much news coverage and public debate—for instance, questions surrounding the legalization of same-sex marriage, proper restroom etiquette for transgender individuals, public funding for sex-change operations, adding “nonbinary” as a third option on state documents requesting gender identification, and more. It seems like every week brings another similar, major story, covered by all the major news outlets—liberal, moderate, and conservative alike.

Many of these can be genuine stories, not meaningless fluff. And all of these people are human beings and deserve to have their voices heard. But it is still fascinating how such a small segment of the population, with little to unite the group beyond the fact that they are all “non-gender-conforming”, has such a hold over state and national conversations.

NEW: Gorsuch Is Confirmed

Moments ago, the Senate officially confirmed Judge Neil Gorsuch to be the newest Associate Justice of the U.S. Supreme Court.

Thank God. Thank God that this process is finally over; it was actually a rather quick confirmation, from the first nomination announcement to final Senate vote, but with all the bitter partisan struggles it felt like forever. I was getting tired of reading and writing about it, day after day, to be honest. But the process is finally over.

And thank God that Neil Gorsuch, not Merrick Garland or whomever Hillary Clinton would have nominated, is the one about to fill Antonin Scalia’s seat. Justice Scalia was a giant of constitutional law, and was a major force in returning the Supreme Court to a limited government, originalist jurisprudence. Not many people could be expected to fill those shoes. Now-Associate Justice Gorsuch is one of the very few who can.

Congratulations, Justice Gorsuch. Now don’t let us down.

Today Is A Big Day

Minutes ago, the Senate vote on cloture for the nomination of Neil Gorsuch to the Supreme Court fell short of the sixty votes necessary to proceed to a final vote. This means that Democrats have no launched the first successful filibuster of a Supreme Court nominee in fifty years, and the first ever solely along party lines.

As I wrote yesterday, over the past week it became increasingly clear that this was going to happen. Which means that it is, as they say, time to go nuclear. One way or another, Mitch McConnell has to make sure that Gorsuch is confirmed. It is something necessary for the future of the country, the Constitution, and, needless to say, failing to ensure confirmation would be equivalent to McConnell signing his own political death warrant.

Many Republicans have expressed dismay over using the nuclear option. I sympathize. It is not an ideal situation, and it should not have come to this. The filibuster is a valuable tool for the minority party, and the GOP still remembers what it was like to be in the Senate minority. It is a certainty that at some point, they will return to that position, and when that day comes they will wish for a tool like the filibuster. But the confirmation of Neil Gorsuch is too important to leave any option, even the nuclear option, on the table.

The actions taken today will shape the future of the Senate as a deliberative body, and the composition of the Supreme Court for decades to come.

Time To Go Nuclear

Democrats now look likely to attempt a filibuster of Neil Gorsuch’s nomination to the Supreme Court. Based on public statements, at least forty-one Democratic senators now say they will vote against the cloture motion, which would allow for a final vote.

I have to say, I’m surprised. Gorsuch won confirmation to the Tenth Circuit unanimously only a decade ago. Many of the Democrats now decrying him as a dangerous and unqualified ideologue were already serving in the Senate then, including Minority Leader Chuck Schumer. It was to be expected that Gorsuch’s nomination to the Supreme Court would be far from unanimous, but I didn’t expect that quite so many Democrats would be so eager to be seen as partisan hacks.

But either way, Democrats have made their choice, and now they must deal with the consequences. Neil Gorsuch is an eminently qualified judge who will make a superb justice. Eliminating the filibuster is not the ideal solution, but it seems to be the only one left.  Apparently, the current Democratic caucus will only accept a judge who has first sworn allegiance to Planned Parenthood and taken an oath vowing to uphold Roe v. Wade at any cost. Anyone else is “outside the mainstream”.

Republicans may well one day regret eliminating the filibuster for Supreme Court nominees. But putting Neil Gorsuch on the Supreme Court is a worthy enough reward. Time to go nuclear.

Democrats Need To Confirm Neil Gorsuch

As of this writing, just two Senate Democrats—Joe Manchin of West Virginia and Heidi Heitkamp of South Dakota—have said that they will vote to confirm Neil Gorsuch to the Supreme Court. Over thirty other members of the caucus, including the Minority Leader, have indicated their opposition to Gorsuch, and the remainder (about a dozen) remain uncommitted, at least publicly.

For comparison’s sake, five Republicans ultimately voted to confirm Elena Kagan, the most recent Democratic nominee to the Supreme Court, in 2010. The previous year, nine Republicans voted to confirm Sonia Sotomayor. As both votes occurred when Democrats still held close to sixty seats in the Senate, neither nomination was ever in any serious jeopardy.

The days when strongly conservative or liberal nominees to the Supreme Court, such as Antonin Scalia or Ruth Bader Ginsburg, could be confirmed with near unanimity are clearly over. But the fact remains that there is an empty seat on the Supreme Court which must be filled, and Democrats are not likely to see a more qualified, respected, or thoughtful judge than Neil Gorsuch be nominated to fill the vacancy. The Democratic caucus, egged on by liberal activists, is obviously betting that a general policy of resistance will have a big payoff in 2018.

The reason Republicans blocked Merrick Garland’s nomination last year was simple: it was a presidential election year, and whoever won the election should get the opportunity to fill the vacancy. It was an idea built over decades of Senate tradition, by Republicans and Democrats alike. Do those Democrats now blocking Gorsuch, who last year argued so strenuously that there could be no vacancies on the Court, now want Scalia’s seat left vacant until 2020?

Neil Gorsuch is an outstanding nominee, highly qualified, has no skeletons in his closet, and has proven through both his testimony and written opinions that he serves the law and the Constitution, at the expense of any personal agenda. Democrats can ask for no better from any nominee to the Supreme Court, much less a Republican nominee.