Supreme Court by DonkeyHotey with Flickr Creative Commons License. From left, Justices Breyer, Sotomayor, Ginsberg, Thomas, Roberts, Kagan, Kennedy, Scalia and Alito.
By Todd Eberly
In a recent interview, Maryland Sen. Ben Cardin argued that Supreme Court nominee Neil Gorsuch was no mainstream judge and described him in some cases as “more extreme” than Justice Samuel Alito.
Maryland’s other senator, Chris Van Hollen, has echoed Cardin’s statements and has announced his intent to filibuster the Gorsuch nomination as the well.
The Democratic filibuster is expected to trigger the so called “nuclear option” where Republicans change Senate rules with a simple majority vote and eliminate the filibuster for Supreme Court nominees.
Both the filibuster and the nuclear option would result in irreparable harm to the U.S. Senate.
When Democrats triggered the nuclear option in 2013 and eliminated the filibuster for all other nominees many observers, myself included, warned that it would only be a matter of time until the filibuster was eliminated altogether.
Such an action would make the Senate a smaller version of the House of Representative where minority party rights have essentially been stripped away. The presence of the filibuster in the Senate requires some degree of bipartisan consensus on legislation and nominees and serves to temper the more extreme actions of the House during this highly polarized era.
Given the dire consequence of the nuclear option, many Democrats expressed a reluctance to filibuster Gorsuch when he was first nominated. But Democrats have faced tremendous pressure from party activists still angry that the Senate never considered President Obama’s nominee to replace Antonin Scalia – Judge Merrick Garland.
Pressure from Democratic Party base
In what can only be described as tortured logic, these activists believe that forcing the nuclear option would represent a victory for Senate Democrats. Never mind that it would actually mean that Democrats would surrender their only procedural weapon to oppose any of Trump’s future nominees — nominees that may well shift the ideological balance of the court. The confirmation of Gorsuch would simply maintain the ideological status quo, making this filibuster a very misguided tactic.
In the face of all this pressure from the party base, Democrats in the Senate have mustered the 41 votes required for a filibuster. And many Democrats have found themselves searching for a reason to justify their decision to filibuster.
Sen. Cardin’s description of Gorsuch as “extreme” and not “mainstream” captures well the typical justification. Unfortunately for Senate Democrats the claims are unsupportable. All available evidence suggests that Gorsuch is very much in the mainstream and that so-called “extremists” like Justice Alito are anything but extreme — unless one’s definition of extreme is any conservative judge.
Bipartisan support for Gorsuch
Gorsuch has received support from six former U.S. Solicitors General who served under Democratic and Republican presidents. The American Bar Association, a decidedly non-conservative organization, gave Gorsuch its highest recommendation. Given his record on the bench, it’s easy to see why he has received bipartisan support.
Gorsuch currently serves on the 10th Circuit Court of Appeals. The 10th Circuit is a well-balanced court with seven Democratic and five Republican nominees.
An analysis of Gorsuch’s opinions on immigration and employment discrimination cases conducted by Nate Silver of the 538 blog found that he resides at the ideological center of the 10th Circuit’s judges.
Of the nearly 3,000 cases that have come before the 10th Circuit during his time on the court, Gorsuch sided with the majority in 97% of the rulings. A review of the roughly 40 cases where Gorsuch was not in the majority revealed that he was as likely to break with judges appointed by Democrats as he was with those appointed by Republicans. This is not the record of an “extreme” judge. In fact, it’s hard to imagine a more mainstream judge.
Alito not extreme
It turns out that Cardin’s claim that Gorsuch is as “extreme” as Justice Alito is an equally misguided statement.
One of the most widely recognized measures of Supreme Court Justices, the Martin-Quinn score, undermines the claim that Alito is extreme. The Martin-Quinn score places justices on a scale that measures their distance from an ideologically moderate perspective.
A recent review of Martin-Quinn scores showed that the longer a justice serves on the court the more they shift toward a liberal judicial ideology. That results in Republican appointees shifting toward the ideological median and Democratic appointees shifting farther away from the center.
At the time of Justice Antonin Scalia’s death, the ideological rankings of the nine justices on the Supreme Court found the following ideological placement beginning with the Justices that were farthest from the ideological center: Justice Thomas (Republican appointee), Justices Ginsburg and Sotomayor (Democratic appointees), a tie between Justice Kagan (Democratic appointee) and Justice Alito (Republican appointee), Justice Breyer (Democratic appointee), Justice Scalia (Republican appointee), Chief Justice Roberts and Justice Kennedy (both Republican appointees).
Far from “extreme,” Justice Alito resides somewhere in the middle of the pack. Gorsuch’s record suggests that he will occupy a space as far from the ideological center as Justice Kagan, Alito, or Scalia – decidedly not an extreme position and within the mainstream of current Justices on the Supreme Court.
No extraordinary circumstance
Filibustering a Supreme Court nominee and triggering the nuclear option should require an extraordinary circumstance of a truly unacceptable nominee. That’s simply not the case with the Gorsuch nomination.
Instead, Democrats are going to filibuster his nomination just to appease party activists, as payback for the Republican Senate’s refusal to consider Merrick Garland, and as a demonstration of opposition to President Trump.
Though I’m sympathetic to the second and third justifications, none of them – individually or collectively – justify the planned filibuster.
Instead of offering real leadership in the Senate, Sens. Cardin and Van Hollen have chosen to be followers. Followers of a very bad and unjustified strategy. I urge them to reconsider their decision.
Todd Eberly, Ph.D., is chair of the Political Science Department and associate professor at St. Mary’s College of Maryland.