Neil Gorsuch became the 113th justice of the United States Supreme Court Friday afternoon, following a Republican circumvention of a filibuster with a long-anticipated “nuclear vote” majority.
While the fulfillment of this particular Trump campaign promise is cause for modest celebration for constitutionalists, those who promoted Gorsuch’s nomination need to remain clear-eyed about what this victory really means for our ongoing constitutional crisis.
Now that the dust has settled in the upper chamber, we’re left with a few things: a fulfilled promise from the Trump campaign, the end of the Supreme Court filibuster for the foreseeable future, and at least a nominal return to the balance of the Supreme Court before Justice Antonin Scalia’s passing last year.
It’s hard to imagine how this nuclear-option change doesn’t set the stage for the upper chamber to nuke the legislative filibuster in following suit, thus reaching the natural end of what the progressive populists sought to achieve with the 17th Amendment.
As Conservative Review Editor-in-Chief Mark Levin pointed out on his radio program this week, the roots of this move are over 100 years old and lie at the feet of the Progressive movement. In short, progressives cast the first stones, both on changing the nature of the Senate and politicizing the process (See: Robert Bork, 2013 et al.).
Ironically, what we have seen this week is the natural conclusion of two progressivist forces that simultaneously – if seemingly contradictorily – seek the end of centralization through the means of mob rule. Long story short, when your judiciary and contemplative body — with authority over approving its members — have been so politicized by judicial activism, a hyper-partisan outcome to the system was inevitable.
The nature of Gorsuch’s confirmation has made it painfully clear that there is no longer the prospect of lukewarm talent on the bench. Now the impetus remains on Republicans to go all out and take the Obama strategy of stacking the court with Trump appointees in the lower courts – albeit encumbered by the “blue slip” process . (And remembering all the while that this political football will change hands, leaving Democrats to do the same once again in the future.)
But, nuclear or not, Justice Scalia’s seat has been filled with an originalist and all is right again with the world, right? No. Rather, conservatives ought to keep in mind that this appointment — while a big fulfilled promise to a greatly concerned constituency — will not solve the judicial crisis facing our Constitution and our republic.
At best, the court now stands at the same ideological balance that gave us the Obergefell decision. At worst, we’re a few degrees further away from original intent than we were on Justice Scalia’s last night on this Earth. Either way, hanging all of one’s hopes for the republic, the rights of the unborn, or a list of other issues before the court solely on Neil Gorsuch’s confirmation and then walking away is a fool’s gambit.
Certainly, should Anthony Kennedy step down and offer up a way to halt the pivot on the court’s “swing vote,” or should anyone else on the progressivist side of the bench leave, then it will be incredibly easier to confirm an even more originalist jurist to fill the spot, as Josh Hammer points out at The Daily Wire.
Neil Gorsuch may in fact be “the kind of jurist we need,” as Sen. Mike Lee, R-Utah, said before the committee, but there’s ground for healthy skepticism on this front. Daniel Horowitz explains that while Gorsuch is indeed a constitutionalist in a broad sense, and his articulation of the philosophy was both succinct and clear, his history of jurisprudence skews closer to that of an Alito than a Scalia. (And definitely short of a Thomas on the originalism scale.) Only time will tell.
But hope is not a course of action, especially when one branch of our government has so thoroughly co-opted the duties of the other two, as Daniel Horowitz points out in his book “Stolen Sovereignty.” Rather, the problems that so many have sought to fix by finding “better judges” are systemic, and the best answers to them are systemic as well.
The situation we see before us is two-pronged, as is the answer. If we want to see the Senate return to being the Senate again, then it needs to return to its original function prior to the 17th Amendment, while enacting reforms to make the courts themselves less political by nature.
But more important is the need for Congress to depoliticize the process of judicial appointments by depoliticizing the federal courts. Per Article III, the legislative branch has the power to completely reform the black-robed branch of government — as Horowitz and I have written about ad nauseam. And if the Senate’s nuclear outcome doesn’t spur that discussion on both sides of the aisle, perhaps the further politicization of the judicial branch will. Until then, we can only anticipate a more partisan Supreme Court and a more radioactive Senate. (For more from the author of “Gorsuch Is in and the Senate Is More Nuclear. Where Do Conservatives Go From Here?” please click HERE)