The Republican majority leader in the Senate, Mitch McConnell, has along with several other leading Republicans said that Neil Gorsuch, ”one way or the other”, will be sworn in as the next Supreme Court Justice before the week is over. In an attempt to obstruct and delay the process (read: to win political points within his own electorate) the Democratic senator from Oregon, Jeff Merkley, is delivering a marathon speech that, when this article was written, had gone on for more than 15 hours nonstop (!).
The US Senate has since long (with a few exceptions) followed an internal rule requiring a qualified majority of 60 votes to confirm a Justice to the Supreme Court nominated by the President. This instead of having a simple majority vote of 51 delegates (there are 100 delegates in the Senate, if votes are tied the Vice President gets to cast the deciding vote).
President Trump’s choice, judge Neil Gorsuch, may be conservative, but there is hardly any reasonable person who questions neither his competence nor his legal qualifications. On the contrary, he is regarded one of the sharpest judges in the whole country and one of the most qualified candidates for the job.
Disappointed after the loss of a highly contested Presidential election, and because the Republicans refused to allow Obama to fill the empty spot in the end of his term with his own choice, judge Merrick Garland, the Democrats in the senate have now united in an attempt to block the nomination of Gorsuch. The reason the Republicans refused to let through Merrick Garland during an election year was that they argued that the voters, the American people, should be allowed to have a say by voting for the Presidential candidate they wanted to have to honor of appointing the next Supreme Court Justice. Most likely the Democrats would have acted just the same if they were in the same situation.
Back to the nominee, Neil Gorsuch. No one doubts his legal qualifications. Nor is he more controversial, or a more “right wing conservative” than the judges appointed by Obama (with enough support from Republicans to reach the threshold of 60 votes) were “left wing liberals”. On the contrary, statistics show that Gorsuch has been on the same side as the majority opinion in 99 % of the verdicts he has taken part of as a judge during the past decade. These numbers speak for themselves.
By their obstructionist behavior, the Democrats are basically forcing the Republican majority in the Senate to change the voting rules so that it will only take a simple majority of 51 votes to confirm Gorsuch. A change of rules will most likely lead to more controversial appointments to the Supreme Court in the future – both under Trump’s presidency, but also under future administrations of both parties.
We can thereby expect a more activist Supreme Court in the future, where judges, instead of applying the law as it was originally intended, legislate from the bench. That would not only be an unfortunate development, but also a dangerous one, as legislative power, in every well-functioning democracy, should be the exclusive privilege of the national parliaments, chosen by the people in free and fair elections.