Eberly: Sorry Sen. Cardin, but Judge Gorsuch is mainstream

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The Supreme Court by DonkeyHotey with Flickr Creative Commons License. From left, Justices Breyer, Sotomayor, Ginsberg, Thomas, Roberts, Kagan, Kennedy, Scalia and Alito.

Like all original news and commentary on the MarylandReporter.com website, this article is published under a Creative Commons License. This means it may be republished in its entirety in any media without permission as long as it is attributed to MarylandReporter.com and has no substantial editing.

By Todd Eberly

For MarylandReporter.com 

In a recent interview, Maryland Sen. Ben Cardin argued that Supreme Court nominee Neil Gorsuch was no mainstream judge and described him in some cases as “more extreme” than Justice Samuel Alito.

Maryland’s other senator, Chris Van Hollen, has echoed Cardin’s statements and has announced his intent to filibuster the Gorsuch nomination as the well.

The Democratic filibuster is expected to trigger the so called “nuclear option” where Republicans change Senate rules with a simple majority vote and eliminate the filibuster for Supreme Court nominees.

Irreparable harm

Both the filibuster and the nuclear option would result in irreparable harm to the U.S. Senate.

When Democrats triggered the nuclear option in 2013 and eliminated the filibuster for all other nominees many observers, myself included, warned that it would only be a matter of time until the filibuster was eliminated altogether.

Such an action would make the Senate a smaller version of the House of Representative where minority party rights have essentially been stripped away. The presence of the filibuster in the Senate requires some degree of bipartisan consensus on legislation and nominees and serves to temper the more extreme actions of the House during this highly polarized era.

Given the dire consequence of the nuclear option, many Democrats expressed a reluctance to filibuster Gorsuch when he was first nominated. But Democrats have faced tremendous pressure from party activists still angry that the Senate never considered President Obama’s nominee to replace Antonin Scalia – Judge Merrick Garland.

Pressure from Democratic Party base

In what can only be described as tortured logic, these activists believe that forcing the nuclear option would represent a victory for Senate Democrats. Never mind that it would actually mean that Democrats would surrender their only procedural weapon to oppose any of Trump’s future nominees — nominees that may well shift the ideological balance of the court. The confirmation of Gorsuch would simply maintain the ideological status quo, making this filibuster a very misguided tactic.

In the face of all this pressure from the party base, Democrats in the Senate have mustered the 41 votes required for a filibuster. And many Democrats have found themselves searching for a reason to justify their decision to filibuster.

Sen. Cardin’s description of Gorsuch as “extreme” and not “mainstream” captures well the typical justification. Unfortunately for Senate Democrats the claims are unsupportable. All available evidence suggests that Gorsuch is very much in the mainstream and that so-called “extremists” like Justice Alito are anything but extreme — unless one’s definition of extreme is any conservative judge.

Bipartisan support for Gorsuch

Gorsuch has received support from six former U.S. Solicitors General who served under Democratic and Republican presidents. The American Bar Association, a decidedly non-conservative organization, gave Gorsuch its highest recommendation. Given his record on the bench, it’s easy to see why he has received bipartisan support.

Gorsuch currently serves on the 10th Circuit Court of Appeals. The 10th Circuit is a well-balanced court with seven Democratic and five Republican nominees.

An analysis of Gorsuch’s opinions on immigration and employment discrimination cases conducted by Nate Silver of the 538 blog found that he resides at the ideological center of the 10th Circuit’s judges.

Of the nearly 3,000 cases that have come before the 10th Circuit during his time on the court, Gorsuch sided with the majority in 97% of the rulings. A review of the roughly 40 cases where Gorsuch was not in the majority revealed that he was as likely to break with judges appointed by Democrats as he was with those appointed by Republicans. This is not the record of an “extreme” judge. In fact, it’s hard to imagine a more mainstream judge.

Alito not extreme

It turns out that Cardin’s claim that Gorsuch is as “extreme” as Justice Alito is an equally misguided statement.

One of the most widely recognized measures of Supreme Court Justices, the Martin-Quinn score, undermines the claim that Alito is extreme. The Martin-Quinn score places justices on a scale that measures their distance from an ideologically moderate perspective.

A recent review of Martin-Quinn scores showed that the longer a justice serves on the court the more they shift toward a liberal judicial ideology. That results in Republican appointees shifting toward the ideological median and Democratic appointees shifting farther away from the center.

At the time of Justice Antonin Scalia’s death, the ideological rankings of the nine justices on the Supreme Court found the following ideological placement beginning with the Justices that were farthest from the ideological center: Justice Thomas (Republican appointee), Justices Ginsburg and Sotomayor (Democratic appointees), a tie between Justice Kagan (Democratic appointee) and Justice Alito (Republican appointee), Justice Breyer (Democratic appointee), Justice Scalia (Republican appointee), Chief Justice Roberts and Justice Kennedy (both Republican appointees).

Far from “extreme,” Justice Alito resides somewhere in the middle of the pack. Gorsuch’s record suggests that he will occupy a space as far from the ideological center as Justice Kagan, Alito, or Scalia – decidedly not an extreme position and within the mainstream of current Justices on the Supreme Court.

No extraordinary circumstance

Filibustering a Supreme Court nominee and triggering the nuclear option should require an extraordinary circumstance of a truly unacceptable nominee. That’s simply not the case with the Gorsuch nomination.

Instead, Democrats are going to filibuster his nomination just to appease party activists, as payback for the Republican Senate’s refusal to consider Merrick Garland, and as a demonstration of opposition to President Trump.

Though I’m sympathetic to the second and third justifications, none of them – individually or collectively – justify the planned filibuster.

Instead of offering real leadership in the Senate, Sens. Cardin and Van Hollen have chosen to be followers. Followers of a very bad and unjustified strategy. I urge them to reconsider their decision.

Todd Eberly, Ph.D., is chair of the Political Science Department and associate professor at St. Mary’s College of Maryland.

  • Mary P.

    I agree with Professor Eberly–Gorsuch is a mainstream judge. What the Dems don’t want people to understand is that their is more than one “mainstream” view of Constitutional analysis. For the most part there are two views “original intent”, like Judge Gorsuch versus “evergreen” which sees the Constitution as a living document that evolves over time.

    Judge Gorsuch has aptly demonstrated during his nomination hearing that he believes in a firewall between politics and the law. Perhaps this is what really scares the Democrats; Gorsuch will not be embracing judicial activism, their hoped-for back door to the realities of a Republican-controlled Congress. But as Judge Gorsuch repeatedly reminded the U.S. Senate during his confirmation hearing, it is t he job of the judiciary to apply the law, not make it. If a law isn’t fair, then it is up to the legislative branch to fix it.

    Instead of wasting all their time and energy trying to prevent the inevitable, Senator Cardin and his Democratic colleagues should be returning to their Congressional history books to study the careers of their predecessors like the late Senator Edward Kennedy and others who understood the art of compromise and learned how to reach across the aisle and get bipartisan legislation passed. I as never a huge Ted Kennedy fan, but at least he and others of his ilk understood that they were their in Congress to represent their constituents, not the Democratic Party.

  • charlie hayward

    A well-reasoned analysis; one which applies in spades to several purple-state democrats such as Casey (PA), McCaskill (MO), Kaine (VA), Stabenow (MI), Shaheen (NH), Peters (MI), and Masto (NV) and a couple others.

  • Laslo Boyd

    In the best of times, the word “mainstream” is an elusive term and these certainly aren’t the best of times. As the Republican Party has moved farther and farther to the right, the notion that whatever is the new middle between their most recent position and that of Democrats is by definition the new mainstream defies logic. Statistics that build off that approach are no more persuasive. Tom Mann and Norman Ornstein have made this case in a compelling manner with respect to partisanship in Congress.
    With respect to Gorsuch’s record, Emily Bazelon and Eric Posner demonstrated in last Sunday’s New York Times that his disdain for the Administrative State is actually philosophically closer to that of Steve Bannon than to any conception of “mainstream.”
    People who are cheered by that prospect are certainly free to support his nomination, but that doesn’t mean that opponents lack legitimate grounds for voting to reject him.
    The blame for the unraveling of deliberation and the unwillingness to compromise in today’s Senate can be a assigned to both parties. The implication that only Democrats respond to their base, and are therefore responsible for the current standoff, ignores history. The filibuster against Gorsuch is a symptom of the dysfunctional state of our politics, not the cause of it.

    • charlie hayward

      Democrats moved left when they rejected Blue Dogs views before the ACA became law, leading to the demise of Blue Dog democrats by 2014. Moreover, Democrats don’t tolerate votes outside the party orthodoxy; Republicans can’t prevent them. Meanwhile more than half the Tea Party either has repudiated their campaign positions (Adam Kinzinger, Sean Duffy, Tom Mclintock, Kristi Noem, and at least 6 others) or weren’t re-elected (Michelle Bachman, Michael Grimm, and at least 11 others.)

      Both parties have moved away from the center. Jettisoning Blue Dogs and intolerance for straying from the party line demonstrate Democrats have moved farther away from the center than Republicans.

  • Steve Whisler

    Dr. Eberly,

    I hope you know that Democrats initiated the rule that allowed filibuster of judicial nominees in 2001 to reject Bush appointees. Before that time, no appointees were subject to a filibuster.

    Frankly, I’m glad we are back to the process prior to 2001. The Republic survived just fine prior to 2001 … I’m sure we’ll survive under a post-Nuclear Option. The elected president deserves to have his or her nominees voted up or down. The Senate power games need to end.

  • HisOwnValet

    I think he means the Reid Rule.