November 26, 2018
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To help navigate the politics surrounding Neil Gorsuch’s pending confirmation to the Supreme Court, we talked to Ian Millhiser ’00, an expert on constitutional law and the judiciary, about filibusters, nuclear options and the death of the Senate. Millhiser, a philosophy major at Kenyon, is a senior fellow with the Center for American Progress Action Fund and the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”
It seems likely that Senate Democrats will filibuster Neil Gorsuch’s confirmation now that they’ve secured 41 votes against him. Will the Republican majority actually trigger the so-called “nuclear option” to confirm Gorsuch with a simple majority vote?
Probably. Senate Republicans held a seat open for an entire year in the hopes that Donald Trump would get to fill it. It seems odd that they would let a procedural hurdle stand in their way now that they are so close to regaining control of the nation’s highest court. Maybe there are three Republicans who will balk at the nuclear option, but I doubt it.
How will this affect future Supreme Court nominees? Will President Trump feel comfortable selecting more conservative justices?
It would be hard for Trump to find someone more conservative than Neil Gorsuch. Gorsuch’s record indicates that he is well to the right of the late Justice Antonin Scalia, the conservative icon Gorsuch hopes to replace, and that he may be as far to the right as Justice Clarence Thomas, the most conservative member of the Supreme Court. For most of his career, for example, Scalia said that courts should show a great deal of restraint when industries sue the Environmental Protection Agency to challenge a new environmental regulation or the Labor Department to challenge a new workplace protection. Gorsuch, like Thomas, wants the judiciary to be much more aggressive in this space.
So, to answer your question, if Trump was willing to nominate someone as far to the right as Gorsuch, he doesn’t have much room to move further to the right with a subsequent nominee.
Would future Democratic presidents be likely to select further-left justices?
Democratic presidents will be more likely to appoint somewhat more liberal justices than they otherwise would have named if the nuclear option is triggered, but I don’t know of anyone who is considered a plausible Democratic nominee who is far to the left as Gorsuch is to the right.
Democrats claim to be voting against Gorsuch on the merits, and not merely as payback for Merrick Garland’s stalled nomination. Is this true?
I wouldn’t frame this as an either/or. I think that the typical Democrat is simultaneously furious that the tie-breaking seat on the Supreme Court was stolen, that Chief Judge Garland was treated very poorly, and that someone who holds Gorsuch’s views could be considered for the Supreme Court.
Senators from both parties have lamented what they view as the diminishment or even death of the Senate as the Gorsuch vote has become hotly contested and bitterly partisan. Is this fair? Or was the Senate already “dead”?
Senators talk about killing the Senate as if that were a bad thing.
It’s really impossible to defend the continued existence of the Senate. 39,250,017 Californians have exactly the same number of senators as 585,501 people from Wyoming. That means that a person from Wyoming counts more than 67 times as much as a person from California. As of this writing, 43 senators announced that they intend to filibuster Gorsuch, but those 43 senators represent 53 percent of the population. The 54 Republican senators who effectively blocked Garland’s confirmation represented nearly 21 million fewer people than the 46 Democratic senators who would have confirmed him.
So, while I’d prefer to see the filibuster survive just long enough to keep Gorsuch off the Supreme Court, I’m not really going to weep over the demise of a Senate tradition.
Gorsuch or no Gorsuch, what do you think is the most important case likely to come before the Supreme Court in the next year?
We’re probably going to see a rush of major cases hit the Court if he is confirmed, largely because the justices have been avoiding cases that are likely to produce a 4-4 split while they are down a member. One such issue that immediately comes to mind is that there are a number of cases brought by business owners who claim that they should be allowed to discriminate against LGBT customers, even in states where such discrimination is illegal.
We’re also likely to see several cases involving state laws that try to keep certain individuals from voting. Shortly before the 2016 election, a federal appeals court struck down a North Carolina law that is probably the most aggressive voter suppression law since Jim Crow. Worse, the appeals court found that the law was specifically designed to maximize its impact on African Americans and to minimize its impact on white voters. It was about as clear-cut a case of unconstitutional race discrimination as you will find in a modern federal lawsuit. Nevertheless, all four Republicans on the Supreme Court voted to reinstate this law — and Gorsuch is likely to be the key fifth vote to permit laws like this one.
There’s also a really exciting challenge to partisan gerrymandering coming out of a federal court in Wisconsin. Although Justice Anthony Kennedy typically votes with his fellow conservatives, the lawyers behind this gerrymandering case did a really smart job of crafting their arguments to appeal to concerns Kennedy raised in past gerrymandering opinions. So, while I expect Gorsuch to be a vote in favor of gerrymandering, Kennedy could potentially cross over to provide the fifth vote against it in this case.
This interview has been edited for length and clarity.