On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia.  This nomination creates a significant question for Senate Democrats on how to proceed.

On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment:  The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W.   While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia.  It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia.  In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision.  As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died.  (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.)  And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths.  Given this reality, the question is how hard to fight this nomination.

The battle over judicial nominations — like everything else — has become more a matter of political trench warfare with each cycle.  In the 1960s, the nomination of Thurgood Marshall was contentious, but — at that time — the ideological lines between the two parties were blurrier and the opposition was regional (Southern senators of both parties) rather than partisan.  However, with the exception of the nomination of Abe Fortas in 1968, all nominees received a vote on the merits (except for those who withdrew before any floor vote) until 2016.   At the time of his retirement in 1991, Justice Marshall was one of two members of the court who received double digit “no” votes on confirmation (with 11 no votes).  However, the last four nominees all received more than twenty “no” votes and only Chief Justice Roberts received less than thirty “no” votes. Continue Reading...