Neil Gorsuch, Al Franken, and Consensus

On Monday night, Sen. Al Franken tweeted out the following:

Now the fact that Franken is against the confirmation of Gorsuch is not, in and of itself, that surprising to me. Like most Democrats in the senate (and I suppose many in the electorate as well), Franken feels the seat that Gorsuch has been nominated to fill is not really his to fill, and instead belongs to President Obama’s nominee Merrick Garland.

I do not disagree with the merits of this point, and in other forums I have gone on record as generally disgusted with the way Mitch McConnell handled that whole situation, and the precedent he may have set for future generations. Were that I had it my way, Garland would be on the Court (even though I disagree with some or much of his jurisprudence I also recognize that the choice could have been more disagreeable to my sensibilities).

That is not, however, how events have unfolded. During the time after Garland was nominated, there was a ceaseless stream of Democratic legislators and pundits taking to the pages of the papers and the Sunday talk show panels to discuss how obstructionist the GOP was being, how it was the job of the Senate to advise and consent based on qualifications alone and without taking into consideration the ideology of the person in question.

Funny how things can change, huh?

Democrats, including Franken, have listed a number of reasons for opposing Gorsuch’s nomination, though none of them seem to be predicated on the man’s qualifications (or lack thereof), or his reputation (which is sterling). Hell, some of Gorsuch’s critics can’t even seem to get the facts of his opinions straight and want to just smear the man’s character instead.

But the reason I wanted to write anything at all about Franken’s tweet is the notion of Consensus nominees. It’s a long-running farce in American politics that justices are nominated to the Supreme Court and go to the bench without any prior political notions that might inform their decisions, that somehow in middle age or late adulthood they inherit some kind of tabula rasa to ensure the perfectly impartial dishing out of justice.

Obviously that’s not how it works, but that’s what we aspire to, and that’s why there is a long history of justices on both the right and left agreeing not to speak about specific cases during their confirmation hearings.

That’s why there is a similarly long history of confirming justices by huge margins. That is why Ruth Bader Ginsburg was confirmed by a 96 to 3 vote and John Roberts was confirmed by a vote of 78-22. Clarence Thomas’ nomination (52-48) was considered unusual (from a parliamentary perspective, among other reasons) because it was the narrowest margin for a nominee in at least a century. It’s not as if the Senate did not have some working understanding of what the Justice’s political leanings were for all those years; it’s simply that in those days the Consensus was that it was the Senate’s job to simply advise the president as to the qualifications of the person in question to hold the position.

Those qualifications did not, it seems, include adherence to a specific ideology. That has been a more recent development, and one for which both sides of the aisle are culpable. Last year’s events with Merrick Garland simply throw the Left’s hypocrisy into sharper relief than ordinarily would be the case. And this whole episode has thrown a spotlight once again on the fact that for the Left, Consensus means wholesale agreement with their agenda and not, as they would have you believe, compromise.

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