There Will Never Be a “Mainstream” Supreme Court Justice
Late Friday morning, Supreme Court nominee Neil Gorsuch was confirmed by a vote of 54–45. Gorsuch, who will take his seat in time to hear the final cases of the 2016 term, is the first justice to make his way to the court in the post–nuclear option era.
There had been a tremendous amount of hand-wringing this week over the ways in which Senate Majority Leader Mitch McConnell’s decision to kill the filibuster for Supreme Court nominees will destroy, once and for all, the governing norms of moderation and civility in the Senate and on the Supreme Court. For the most part, the reality is that to the extent those values ever existed in the Senate, they have been functionally dead for a long time. And maybe doing away with the pretense that the Senate has become anything more than a Jell-O wrestling pit tricked out with fancy leather chairs isn’t a bad thing.
The better question is whether doing away with the requirement that nominees accrue 60 votes in the Senate will make any substantive difference at the Supreme Court. There is no doubt that, at least for those on the left, the court has suffered a blow to its legitimacy. But will the composition of the court itself change going forward? Theoretically, at least, the nuclear option could clear the path for vastly more partisan and polarizing nominees, ending the incentive for presidents to try to find compromise candidates. But this logic assumes two facts not in evidence: The first is that Republicans and Democrats can agree on what a “mainstream” or centrist jurist is. They cannot. The second is that the nominating party has traditionally settled on compromise candidates. It has not.
To the first observation, one need look no further than Judge Neil Gorsuch. Every available assessment from the right and the left holds that he will be ideologically aligned with Justice Antonin Scalia, if not slightly to the right of him. This, in the view of his supporters, places him solidly in the mainstream. We needn’t have gone through an entire confirmation process to establish that in his 10-year career on the bench, Judge Gorsuch has strongly favored business interests over individual rights, religious interests over statutory entitlements, and corporate speech over campaign finance efforts. No part of this is a mystery: He wants to hobble federal agencies, let religious employers discriminate against workers, and defund Planned Parenthood. These are not surprising stances for someone who was selected by the Federalist Society and the Heritage Foundation. This is the stuff Federalist Society mommies pour over their kids’ cereal each morning.
Senate Democrats do not accept that these are mainstream legal views. They read Gorsuch’s National Review article deriding liberal legal activism as precisely what it was intended to be: a renunciation of the progressive view of courts as essential to vindicating unpopular but crucial minority rights. Senate Democrats believe, not incorrectly, that Judge Merrick Garland—who would have likely found himself slightly to the right of Stephen Breyer and fractionally to the left of Anthony Kennedy—was a mainstream, centrist judge. Conservative dark money groups spent millions of dollars making the case that Garland would have been a fringe leftist activist, to the left of Ruth Bader Ginsburg.
When we talk about the Kabuki theater of confirmation hearings, we miss the real point: It’s not just that recent nominees are hiding the ball or failing to answer hard questions. It’s that, with rare exceptions, we know precisely what we are getting and that neither side agrees on whether what we’re getting is mainstream or on the lunatic fringe. Gorsuch is a right-wing activist judge. Democrats find that unacceptable. Republicans find it heartwarming. The only material issue for the past 30 years has been whether a jurist will drift ideologically to the center during his or her time on the bench. Neil Gorsuch will not drift. Indeed, one can well imagine that the bruising personal attacks he was said to have suffered from liberal groups throughout the process will not be forgotten in his three or more decades at the court.
That’s why blowing up the filibuster will not do away with the practice of appointing centrist moderate justices: They have already disappeared. We haven’t had a centrist moderate justice at the court since Louis Powell retired in 1987. And while it’s true that the court continues to move rightward, and the “center” of the court is now occupied by a very conservative jurist by all historical standards, the illusion that a Merrick Garland could ever be confirmed again was destroyed when Merrick Garland, a true centrist ostensibly acceptable to senators on both sides, never got a hearing.
In nominating Garland, President Barack Obama made a good-faith effort to select a true compromise candidate. Republicans spurned that olive branch, and those willing to acknowledge Garland’s existence pretended he was a stealth left-wing extremist. Now Republicans allege that Gorsuch is a “mainstream” judge. To repeat: He’s not—most analyses place him to the right of Scalia. Meanwhile, a truly centrist judge like Garland gets slammed by Republicans as a left-wing extremist. So to the extent anyone has learned anything from the recent debacle, it’s that there are no moderate justices anymore.
The truth is that Republicans and Democrats have been playing by different rules for decades when it comes to the Supreme Court. Republican nominees are almost always more conservative than Democratic nominees are liberal. Obama’s two real-life successful nominees, Justices Sonia Sotomayor and Elena Kagan, are both moderately liberal. Sotomayor has sided with the conservative justices multiple times, even casting a decisive fifth vote for their position; Kagan famously voted with conservatives against the Affordable Care Act’s mandatory Medicaid expansion. How many times has George W. Bush appointee Samuel Alito defected from the conservative line to provide a fifth vote for the liberal bloc? Zero.
Yet Alito got through the Senate without a filibuster. And when the filibuster threatened to block Gorsuch—that is, when it was poised to accomplish its alleged purpose of thwarting nonmainstream nominees—Republicans killed it. These facts, on their own, stand as proof of how little the filibuster really mattered for Supreme Court nominees. When it existed, Republicans got their far-right justices on the bench, and Democrats compromised to nominate moderate liberals. In the absence of the filibuster, that dynamic won’t change. One party compromises; the other does not. And unless one party revises its rulebook, the court will continue to shift to the right, pulling the ideological “center” along with it.