Filling The Supreme Court Seat Stolen by Republicans Remains An Unprecedented Challenge

The following post, written by The Rev. Robert A. Franek, is a part of Politicus Policy Discussion, in which writers draw connections between real lives and public policy.

In our system of government, the courts are the final check and balance on executive and legislative power. It is the courts that uphold or strike down executive and legislative actions for the protection of the rights of the people as guaranteed by the Constitution. It is the courts that finally assure that our public policies protect the fundamental rights and liberties of the people set forth in the Constitution. And as times change and new challenges emerge, it is the courts that must do the hard interpretive work of applying fundamental principles and ideas to ever new realities.

This work is nowhere more critical for the life and well-being of the citizenry of this country than the United States Supreme Court. Its rulings affect the real lives of real people every day. And for this reason, the lifetime appointment nominees must be vetted with great care. A generation or more of legal precedent is entrusted to their diligent work and prudent rulings.

Filling the most recent vacancy on the high court, created by the sudden death of Justice Antonin Scalia in February of 2016 continues to be fraught with challenge. This challenge centers on the interpretative work of the court and Republican efforts to seat a justice friendly to their extreme agenda.

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The unprecedented obstruction of President Barack Obama’s nominee Judge Merrick Garland, a centrist and consensus candidate by all accounts, will forever shape the filling of this seat. It was not Judge Garland who was the problem. It was President Barack Obama and despite having nearly 25 percent of his term in office left, Republicans led by Senator Mitch McConnell cried that this was an election issue and must wait until after the new president is inaugurated. Once again, they could not be troubled to actually do their jobs.

With Donald Trump now sitting in the Oval Office, a new nominee quickly emerged in Judge Neil Gorsuch, and Republicans pounced crying for hearings and a vote to get him on the bench as quickly as possible after hindering the work of the high court for a year. It is clear their interests are not in the functioning of the court but in having a friendly justice on the bench.

After four days of hearings last week, Judge Gorsuch offered little in the way of his judicial philosophy to the dismay of Democrats in the Senate whose vote is essential to his confirmation. However, Donald Trump made clear the kind of justice he would nominate, hand-picked by the Heritage Foundation and endorsed by The Federalist, and Judge Gorsuch did little to counter these assumptions beyond saying repeatedly that he would consider all the evidence carefully. Right. Carefully. Sure.

Judge Gorsuch also repeatedly said to look to his whole record for deciding about his judicial philosophy. So that would be the record that continually puts the interests of corporations ahead of the people. No wonder Senate Republicans are so eager to seat him on the bench.

Critical cases are on the line and the civil rights of people hang in the balance for the present and long-term future of our country. Judge Gorsuch did little to show that he is willing to be a protector of the rights and liberties of the people as guaranteed by the Constitution. He played a nice friendly guy hoping to slide through the hearings on likability alone. Though it is clear what is judicial philosophy is.

Herein lies the challenge for filling the vacancy on the high court. And this is to say nothing of the Trump Russia scandal for which it is imperative that the confirmation process be put on hold until the FBI investigation has concluded as Senator Elizabeth Warren has called for. And given this threat to our national security Sarah Jones persuasively argues that Democrats must block the nomination of Judge Gorsuch.

Still if not Judge Neil Gorsuch, and even if the Trump Russia scandal eventually gets our president impeached, convicted, and removed from office, it will be a Republican left to make the next nomination. And given their track record it is not likely they will do the honorable thing like President Barack Obama did in selecting a bipartisan consensus moderate with an impeccable record of judicial service to and for the people of the country. No, the Republicans are likely to go back to the list of judges approved by the Heritage Foundation who will be friendly to their extreme agenda of stripping people especially women and minorities of their rights and emboldening the power of corporations while continuing to destroy the environment.

It is hard to see a way forward that reconciles and resolves the scandal of this stolen seat on the high court apart from Republicans putting forth a nominee on par with Judge Merrick Garland. But even then, the damage has been done and it is irreversible. We can only move forward from where we are at now. History cannot be undone, but neither is it yet fully written in the filling of this unprecedented vacancy on the high court.

Moving forward one thing is sure: the forever stolen seat on the Supreme Court of the United States does not belong to nominee Judge Neil Gorsuch.