Liberals around the country are calling for Senate Democrats to fight Neil Gorsuch’s nomination to the Supreme Court. Since Republicans hold a two-seat majority in the Senate, Democrats would likely have to filibuster to hold up Gorsuch’s confirmation, which could provoke Republican Senate leadership to deploy the “nuclear option” of removing the filibuster entirely – an option President Trump has explicitly endorsed. But many liberals are so enraged – by the Merrick Garland fiasco, by Gorsuch’s conservatism, and by President Trump’s recent executive order on immigration – that they are willing to plow ahead with a filibuster anyway. This is a mistake, not primarily due to the threat of the nuclear option, but because the integrity of the Court may hinge on Democrats’ willingness to confirm a qualified but ideologically offensive nominee.
The framers of the Constitution conceived of the Supreme Court as an apolitical check on the legislative and executive branches. Their idea was that the court would stand apart from the political fray in order to secure stability and fairness within the constitutional order. But especially since the 1980s, the Supreme Court has politicized rapidly, with some scholars labeling it a “super-legislature” that functions as an additional battleground for the partisan warfare that plays out in Congress. The Supreme Court’s institutional role in our democracy has weakened as the court has politicized.
Many of us are terrified and appalled by Trump’s presidency so far. His unprecedented moves, from the travel ban and firing dissident officials on the spot to placing Steve Bannon on the National Security Council, may signal a constitutional crisis for our nation. Consequently, it is now more important than ever to focus on the stability and integrity of the institutions that anchor our constitutional order. These institutions are the best bulwark we have against authoritarianism. And fighting tooth and nail against Gorsuch might only accelerate the Court’s institutional decay. By taking the high road, Democrats could take the lead on a long and difficult journey towards the ideal of an apolitical Court.
Some might object that it is only fair to resist Gorsuch, since Republicans unreasonably refused to even hold hearings for Garland. I agree that Garland should have received his hearings. But this kind of tit-for-tat reasoning is precisely the kind of approach to the Court that undermines its institutional integrity.
Others might object that Gorsuch’s stances on certain issues, such as women’s reproductive rights, justify resistance. I don’t mean to minimize the inherent value of standing up for what is right. But in this case, we must weigh the value of protesting Gorsuch’s stances against the value of affirming the Court’s apolitical institutional identity. I submit that the strength of our constitutional institutions matters more, especially right now.
Liberals are right to be wary, as values they rightly treasure are under attack. But for that very reason, they should not oppose Neil Gorsuch’s confirmation to the Supreme Court. With so much on the line, we must shore up our institutions, including our judicial institutions, for what could be a very troubling future.
Daniel Layman is an assistant professor of philosophy at Davidson College. Email: email@example.com
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