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Gorsuch Confirmation Hearings

Tuesday, 4 April 2017

by Staff, Spaulding Law

The Senate hearings for US Supreme Court nominee Neil Gorsuch began March 20th, and as expected there was strong opposition from the Democratic party. This opposition is for multiple reasons: payback for the refusal by the Republican controlled Senate to hold a hearing for Merrick Garland who was nominated by President Obama, differences in philosophy, and an attempt to activate their base.

Supreme Court Justice Antonin Scalia passed away on February 13, 2016 leaving a vacancy on the Supreme Court. Then president, Barack Obama nominated Merrick Garland to fill this vacancy on March 16, 2016. The Senate was controlled by Republicans at the time. As it was the last year of President Obama’s term and with considerable concern that replacing the very conservative Scalia with a more liberal justice would cause a shift in the ideological balance of the court, the Senate refused to hold any hearings for Supreme Court nominees. This caused frustration and anger amongst Democrats as there was ample time to hold hearings before the election. This frustration was felt during Gorsuch’s hearing through questions specifically referring to the fairness of the treatment of Mr. Garland.

Nominee Gorsuch is similar to Justice Scalia in that both are considered to be textualists. The idea behind this philosophy is that you are bound by the language in the law and, to some extent, the original intention of the law. This philosophy is often thought to be narrow and to favor conservative ideals. Many Democrats favor a more liberal philosophy referred to as judicial activism. Judicial activism refers to an interpretation of the law in the current atmosphere and can take into consideration political ramifications of decisions. Gorsuch through his hearings repeatedly refused to give his thoughts on current political issues reaffirming a belief that as a judge he must remain politically neutral. This affirmation was interpreted as insincere by those who oppose him and labeled an attempt to evade difficult questions and avoid transparency.

The Democratic party’s power is currently limited at the federal level. They do not have control of either house of Congress, the presidency, and the ideology of the Supreme Court is fairly balanced. Their first real opportunity to change the balance of power comes in the 2018 midterm elections. If there is enough dissatisfaction with the status quo, the Democrats stand a fair chance at regaining control of either the House, Senate, or both. One way to create dissatisfaction is to make it difficult for the other side to accomplish their goals. Democrats may use a filibuster against Gorsuch’s to achieve this. The Republican party still has a “nuclear option” to change the rules of a confirmation to a simple majority vote. However, that may cause the dissatisfaction Democrats are looking for and could have undesirable implications when the opposing party regains power.

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