Merrick Garland versus Neil Gorsuch

After 283 days, on January 3, 2017, Merrick Garland’s nomination for appointment to the United States Supreme Court expired, as the Senate refused even to consider his candidacy.

Despite persistent claims, this was not entirely unprecedented.  However, it was indeed an undeniable abuse of partisan political power by one of the few individuals in history capable of getting away with it, Senator Mitch McConnell.  That action set an extremely dangerous precedent — or, conversely, revealed a weakness in the Constitution with regard to the powers of Congress.

And yet, what did it accomplish?

With Garland now out and Neil Gorsuch in, it is reasonable to explore what differences there are between the two men that made such a drastic step seem necessary to the Senate Republicans and to McConnell in particular.  So, let us consider:

Both Garland and Gorsuch are highly experienced and respected members of the federal judiciary, circuit appeals court judges with both merit and political clout.  Each served a clerkship under respected circuit court judges and then in the Supreme Court.  Each has, since their appointments to the Circuit Courts, sent a large number of their own highly-trained clerks on to clerk at the Supreme Court, gaining reputations as “feeder judges”.

A word on feeder judges:  Most federal judges like to take care of their clerks, training them as well as they can and then sending them on to better things.  Some do this through political connections; others simply gain a reputation as exceptional trainers of clerks.  Garland and Gorsuch are both well-connected and highly skilled at what they do, and so a large proportion of their clerks move onward through their efforts.

Neither has published an opinion on abortion rights as such; both are sticklers for the precise wording and intent of the law, and neither has attempted to use his position to alter the practice or enforcement of such.  Garland is, despite reports, moderate on gun control; so apparently is Gorsuch.

There exist, as best I can tell, but two substantial differences between the two men.  Garland interprets his position as one which is designed to facilitate government within the law, broadening its interpretation when necessary, whereas Gorsuch has stated repeatedly that his role is merely to interpret rather than broaden the law.  (It’s worth mention that both view the role of Supreme Court justice as one who can dynamically interpret law, making this distinction somewhat academic.)  And Garland views the law as a living entity, capable of drastic alteration through the intervention of the courts for the benefit of both the function of government and of fundamental rights, whereas Gorsuch is an originalist; he prefers to interpret it in the light of the beliefs and interpretations of the original intent — though, again, within the bounds of fundamental rights.

In short, Garland believes in the supremacy of the government and the individual, whereas Gorsuch believes in the supremacy of the law and the individual.  It’s an important distinction, but in the grand scheme of things it’s fairly minor:  Gorsuch is marginally less likely to offer sweeping changes to the status quo, whereas Garland is always highly unlikely to dissent.

Bottom line?  There’s about a hair’s breadth of difference between the two men, who are each ideally suited as justices of the Supreme Court.  Each is a brilliant scholar; each is a strict interpreter of the law; each will protect the rights of the individual as much as he deems practicable under the law.  And each, importantly, acknowledges the doctrine of judicial review.

The only differences that matter are that Mitch McConnell would be embarrassed were Merrick Garland to be nominated by President Trump, whereas he can have no possible objection to Neil Gorsuch.  And Senate Democrats will be shown as powerless if they fail to block or at least delay the confirmation.

And so it comes down once again to politics:  In their wisdom, it is likely that Senate Democrats will continue their pattern of deliberate obstruction towards this nominee precisely because he’s a nominee of President Trump.  And, as Trump has demonstrated, he’s quite willing to employ his executive power to make temporary appointments as need be; should the Democrats attempt to match McConnell’s obstructionism, they will face a simple and embarrassing defeat.

Incidentally:  Should Senator McConnell ever make an enemy of President Trump, it would be a skillful act of revenge for Justice Garland to receive the next nomination or, indeed, appointment to the Court — an appointment for which he would be extremely well qualified.

ADDENDUM:  In the hours since this was composed, I’ve read several new partisan reports on the voting record of Gorsuch.  This is perfectly predictable, and normally I’d be prepared to discount them entirely — politics as usual involves defaming everyone.  Gorsuch once wrote a brief on that, in point of fact, condemning the delay of Merrick Garland’s appointment to his present position back in 2002.

Gorsuch is noted for his position in the Hobby Lobby case, which was a technical one in favor of the business.  In it he carefully outlined several aspects of the law which, according to him, would need to be rewritten for it to retain validity.  Since the law in question is the Affordable Care Act, this is likely to have some impact on his choosing — but, since the arguments were technical in nature, and given his statement on the role of a justice as interpreter and not creator of the law, I believe at present that his influence there would be at most academic.

Nevertheless, as Gorsuch is an adherent to the doctrine of judicial review as regards the Supreme Court, it is in fact possible that his actions will be far more progressive than his record would indicate.  Bottom line?  You never actually know what a new justice will do until they’re actually in and ruling.

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