Bernie Sanders is Right to Oppose Gorsuch

by Benjamin Studebaker

Today US Senator Bernie Sanders (D-VT) announced his intent to support efforts to filibuster Neil Gorsuch’s Supreme Court nomination:

Sanders has made the right call. Here’s why.

In his remarks, Sanders listed several areas where he’s convinced Gorsuch has the wrong position:

  • He believes Gorsuch agrees with the Citizens United v. FEC decision, which lifted campaign finance restrictions, and is likely to support further reductions in campaign finance regulations. Organizations which both support and oppose the decision agree with Sanders’ interpretation of Gorsuch’s view.
  • He believes Gorsuch agrees with the Shelby County v. Holder decision, which weakened the Voting Rights Act of 1965 by eliminating preclearance for states with a history of passing discriminatory voting laws on the grounds that the formula for determining which states required preclearance was outdated. The ruling requiring congress to pass a new law with an updated formula, but congress has not been able to pass any new law due to Republican opposition. A 2005 article Gorsuch wrote for the conservative National Review suggests that Gorsuch believes that the left has an “overweening addiction to the courtroom as the place to debate social policy.” His response was evasive when asked about voting rights at his confirmation hearing, and he was vetted by the Federalist Society, which also vetted Roberts, Alito, and Thomas–all of which supported the decision.
  • He believes Gorsuch opposes Roe v. Wade and abortion rights more generally. In his confirmation hearings Gorsuch refused to express normative support for the decision. The Federalist Society describes Roe as “abuse of discretion“.
  • He believes Gorsuch will support the interests of corporations and employers at the expense of unions and workers. Sanders cites Gorsuch’s infamous frozen trucker decision, in which Gorsuch ruled that a trucking company could fire a worker for abandoning a broken down trailer when staying might have resulted in frostbite and death. He also points to a decision in which a university fired a professor who was sick with cancer and had been advised by her doctors not to return to campus, despite her offer to work from home. Both of these decisions did indeed happen, and we can form our own opinions about them.

Gorsuch has sought to portray himself as a reasonable, mainstream Supreme Court nominee, and many media outlets have been happy to help him out. But academic research does not support this. Epstein, Martin, and Quinn use a reliable, empirically-tested method to evaluate the left/right ideology of current and potential Supreme Court justices. Their work places Gorsuch further right than Scalia:

Included in the chart are all the other individuals who were mentioned as possibilities by President Trump or someone connected to the administration or the Republican Party. As we can see, there are only two possible justices who scored as more conservative than Gorsuch–Eid and Lee. Both of these judges occupy the same general ideological space–in between Scalia and Thomas.

Opponents of the Gorsuch filibuster claim that if the Democrats reject a “moderate” like Gorsuch, the Republicans will nominate someone worse or eliminate the filibuster. But it doesn’t seem that they could do much worse than Gorsuch–most of the judges they considered were better, and some significantly so. The Republicans are not threatening to eliminate the filibuster because the Democrats are threatening to block a moderate, they are threatening to eliminate the filibuster because the Democrats are threatening to block one of the most conservative possible nominees. Indeed, if we look at past Supreme Court justices’ Martin-Quinn scores, we see that Gorsuch (or any other judge occupying the space between Scalia and Thomas) would likely be one of the most conservative judges in modern history:

I would have some sympathy for the argument that we ought to accept a Trump nominee to avert a worse selection if Trump had indeed offered the left an olive branch and picked a moderate like Willett or Hardiman. If he had picked a judge occupying the space between Roberts and Alito like Blackwell or Colloton, we could have a debate. But if Trump is going to pick judges that are more conservative than Scalia anyway, what is the point in supporting them? What do Democrats gain?

All confirming Gorsuch does is allow the Republican Party to set the agenda for what counts as a “moderate”. It paints Democrats as cowards and weaklings who will not stand up for left wing principles. During the Obama presidency, Republicans repeatedly filibustered and blocked appointments and legislation without paying a meaningful political price. Instead, their supporters were galvanized by the GOP’s willingness to espouse conservative principles even in cases where such gestures proved futile. Many are now afraid that if Democrats oppose Trump too voraciously, Trump will refuse to make concessions, but President Obama frequently made concessions to Republicans even though they repeatedly stood obstinate. Indeed, the more Republicans fought Obama, the more concessions he made–his nominee, Merrick Garland, was projected by Bonica et al. to have occupied the same ideological space as Willett.

I am not against cooperating with Donald Trump regardless of the circumstances–if he offers to get behind a real infrastructure stimulus plan, I’d support that, and if he had nominated Willett or Hardiman, I would have accepted that compromise. But cooperation with Trump is only worthwhile when he is actually offering Democrats something of value in return. Gorsuch is not a meaningful concession and those Democrats who vote for him are either ideologically compromised or painfully bad at the art of the deal.