For months, there’s been plenty of talk about candidate and Pres. Trump destroying various political and cultural norms. Fair enough. Most of this talk, however, comes from Democrats (or the Left broadly), who are in the process of upending a political norm themselves.
The nomination of Judge Neil Gorsuch to serve as an Associate Justice on the Supreme Court was favorably voted out of the Senate Judiciary Cmte yesterday on a party-line vote. It seems likely that the Democrats will filibuster his nomination when it reaches the Senate floor, which in turn will likely cause Senate Republicans to change the rules to eliminate the filibuster for SCOTUS nominations and to confirm Gorsuch by majority vote.
The GOP will be entirely justified in changing the rule. Gorsuch is eminently qualified for the position. No credible complaint has been lodged against his ethics. His record is overwhelmingly in the majority of the panels on which he has served for the Tenth Circuit Court of Appeals. His opinions are generally well-founded and lively in language.
In contrast, the Democrats’ opposition has been an incoherent mess. Much of it has been an improper, results-oriented attack on his decisions, continuing the losing claim of Hillary Clinton’s campaign that courts should decide cases based on identity politics.
OTOH, when they aren’t painting him as an extremist, they’re conceding he’s really pretty mainstream, but cannot be confirmed after the way the GOP refused to hold hearings on Pres. Obama’s election-year SCOTUS nomination of Merrick Garland (an approach previously endorsed by Dems like Joe Biden and Chuck Schumer).
Further, Dems are supposedly alarmed that Gorsuch might reconsider precedents like Chevron v. NRDC, or even Roe v. Wade, which Democrats have taken to calling a “super-precedent” (a term as imaginary as a unicorn). But they are also alarmed that he would be unwilling to reconsider precedents they don’t like, such as Citizens United v. FEC. Again, a completely political, results-oriented approach that itself departs from the historic norm for judicial nominations.
Ending the filibuster for SCOTUS picks is the next step after Senate Democrats ended the filibuster for judicial nominations to lower courts. Republicans had blocked a number of Pres. Obama’s judicial nominees, but it must be noted that this was in part a response to the Democrats’ filibuster of prior GOP nominees like Miguel Estrada, a highly-qualified jurist blocked more than once for no other reason than Dems’ fear he eventually would be appointed to the SCOTUS.
The GOP was also responding to the attempted filibuster of Samuel Alito’s SCOTUS confirmation. While unsuccessful, the Alito filibuster was supported by Senate Democratic leadership and by then-Sens. Hillary Clinton, Barack Obama, Joe Biden and John Kerry, to name a few.
Indeed, it could be said the Democrats have been attacking the norms for judicial nominations since at least the Reagan-era nomination of Robert Bork, an episode so egregious that the man’s name became a verb signifying a political smear. Even after the Borking, Republicans attempted to adhere to the traditional norm of supporting well-qualified SCOTUS nominees despite philosophical disagreements, as can be seen by the near-unanimous vote for Ruth Bader Ginsberg. The GOP got nothing for their consistency.
In this sense, the GOP tried to maintain the norm of confirming well-qualified jurists; the Dems are trying to destroy the remnant of that norm after decades of effort.
And in a way, none of this should surprise anyone much, as Democrats are by nature not particularly fond of norms — at least not those they are establishing and imposing. Progressivism is at its heart a philosophy that is not fond of Constitutional norms, as Woodrow Wilson made plain before and during his Presidency. And in general, they are not disposed to ask why a fence exists before removing it.
Of course, some societal norms are worth junking. Jim Crow is one obvious example, though progressive Democrats will crow much more about their role in ending it than their prior interest in eugenics (some of which still turns up in the unguarded thoughts of abortion advocates). Fewer are interested in examining less obvious examples.
All of which is a roundabout way of saying that in politics, people’s concern about norms is usually as situational as their position on any other question. It would be far better if those purporting to be concerned about norms were willing to have an adult conversation about why certain fences might exist, regardless of which partisan tribe holds a temporary majority. But that norm appears to have been knocked down long ago.
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