While we did not know that it would be the result of Justice Anthony Kennedy stepping down at age of 81, for the last ten years, we all knew something would happen -- someone would suddenly die or someone in his/her 80s would decide to retire and smell the roses -- that would result in a vacancy. We all knew that the 2016 election was EXTREMELY important, especially since the Republican Senate Majority Leader Mitch McConnell decided to block even considering any nomination from President Obama after Justice Antonin Scalia unexpectedly died, and he was able to herd his Republican colleagues to agree to that shamefully political deed, even when a majority on both sides of the aisle felt that Merritt Garland is highly qualified and a pretty (un)reliable swing vote -- a Goldilocks pick -- not too conservative, not too liberal.
So, the Democrats lost the control of the White House. They did not regain control of the Senate. But, the so-called "nuclear option" was still in place, because no one had yet had reason to change the rules to no fillibusters and a simple majority vote wins when it came to confirming something as important as Supreme Court Justices.
And, then, when President Trump nominated Neil Gorsuch, who, while on that "list" that he had waved around during his campaign and had been endorsed by the Federalist Society, is also highly qualified, and not as scary a conservative as they come.
The Democrats girded their loincloths and cried the battle cry, resulting in, of course, losing the "nuclear option," because the Republicans had the votes to do so. And, then, they had the votes to confirm Neil Gorsuch, including three yeas from Democrats. I thought that outcome was predictable and taking the long view, why not be reasonable and not provoke the Republicans to nuke the "nuclear option"?
I wrote as much to U.S. Senator from Illinois Richard Durbin through his Senate website. (I would have written to Tammy Duckworth who had just won the other seat for Illinois, but I couldn't find a good e-mail address for her -- the Senate one not being up yet and her election campaign one being inoperative. I was hoping that she might have a calming and reasoning influence on an increasingly shrill Durbin.) I basically wrote, man, you have to take the long view. Okay, so don't vote for Gorsuch, but don't get all blustery lest you lose the option to come back and fight another day, because who knows when the next candidate will come up for a vote and who that would be.
I received a delayed response. It did look like the work of some aide who had better things to do, because it was a cut and paste job in different fonts and not at all responding to the idea of preventing the vote to drop the opposition's right to filibuster and requirement to have a greater than simple majority to confirm, which the Republicans would inevitably win. The response is exactly as I received it as a return e-msg. Re-reading it now myself, it doesn't sound as much of a rant as it did 15 months ago, but it's still besides the point. I didn't ask him to go against his principles and vote for the guy, simply to be a little bit smarter about the whole process. And note the date. On 6April, the Senate majority voted to eliminate the "nuclear option," ("to Ease Gorsuch Confirmation," NPR headline said), and on the next day, Neil Gorsuch was confirmed as Supreme Court Justice.
|April 3, 2017
Ms. Carolyn Chin
202 West 1st Street
Dixon, IL 61021-3028
Dear Ms. Chin:
Thank you for contacting me about President Trump's nomination of Judge Neil Gorsuch to serve as an associate justice of the United States Supreme Court. I appreciate hearing from you.
Judge Gorsuch is an appellate judge for the U.S. Court of Appeals for the Tenth Circuit. He is a graduate of Harvard Law School with a Ph.D. in Legal Philosophy from Oxford University.
Judge Gorsuch began his legal career as an attorney in private practice in Washington, D.C.. In 2005 he joined the U.S. Department of Justice as Principal Deputy to the Associate Attorney General. In 2006, Judge Gorsuch was nominated by President George W. Bush to the U.S. Court of Appeals for the Tenth Circuit, where he now serves.
Senators have a constitutional responsibility to perform careful due diligence on Supreme Court nominations. Decisions by the Supreme Court affect issues of fundamental importance to the American people, including workers’ rights, women’s health, environmental protection, criminal law, immigration, privacy, civil rights and voting rights.
Nominees to the Supreme Court must demonstrate that they will uphold and defend the Constitution for the benefit of all, not just for the advantage of a privileged few. As a member of the Judiciary Committee, I had an opportunity to ask tough questions of Judge Gorsuch. He was given a full and fair hearing, where he had every opportunity to explain his judicial record and his views. For the majority of questions from Democratic Senators at his hearing, Judge Gorsuch failed to meaningfully respond at all. He had a standard set of evasions and non-answers that he used whenever he was asked about fundamental legal principles and landmark cases.
I did not find assurance in Judge Gorsuch’s testimony last week, and I did not find assurance in his record. He received a fair hearing, but he did not earn my vote.
We are at a unique moment in history. The President has already fired an Attorney General and had his unconstitutional executive actions blocked by several federal courts. The President, in the first few weeks, has also launched unprecedented attacks on the integrity of the federal judiciary. And now, the Federal Bureau of Investigation has confirmed it is investigating Russian involvement in the recent U.S. election. In this context, the Senate cannot simply rubber stamp a lifetime Supreme Court appointment for the President.
I cannot support the nomination of Neil Gorsuch. I will vote no when his nomination comes before the Judiciary Committee, I will vote no on cloture, and I will oppose his nomination on the Senate floor.
Thank you again for contacting my office. Please feel free to keep in touch.
Richard J. Durbin
United States Senator
Fast forward to now, as the Senate prepares to hold hearings on Brett Kavanaugh who has the distinction of having been at one time a clerk for the retiring Anthony Kennedy. Does his views differ from Justice Kennedy's? Apparently, yes. But, again, Kavanaugh is fully qualified and may have a little bit more Kennedy guidance in him than he has been able to use in his presidings to date. And the biggest BUT? It doesn't matter, Dick Durbin. You can bluster all you want, but you have no filibuster; you have no 60-vote option. Durbin, like quite a few Democrats, just sounds like the partisan one, declaring that they won't vote to confirm Kavanaugh, because the hearings will just showcase what they already know -- he's not unreliably swing vote enough. How childish. This is my representative in the Senate? I expect diplomacy, measured deliberation, cooperative spirit and most of all, forward thinking and far-reaching actions. I am not saying that Mitch McConnell and other Republicans are more mature, but someone has to have the imagination to rise above the sticking out of tongues and playground taunting.
On the other hand, we do still have Senator Tammy Duckworth, who at least tried to be diplomatic and make the best of a no-win (for the Democrats) situation. And, maybe RBG (as Justice Ruth Bader Ginsburg has been known to be called) can hold out until the country, or at least the Senate, gains some sense, civility and future thinking back.