No Changing the Rules in the Middle of the Game

In “To Bork or Not to Bork” (Sentinel Feb. 2, 2017), I said of then-nominee, now-Justice Neil Gorsuch, “We are about to witness a classic fistfight, Democrats against Republicans,” adding that the Republican majority has “the ultimate trump card, the so-called ‘nuclear option.’” I went on to suggest that the Senate give Judge Gorsuch “the courtesies denied to Judge Garland” and then decide whether to confirm based on his qualifications.

As the nomination process played out, it became apparent that no one was listening to me. To be sure, some senators took strong issue with Judge Gorsuch’s judicial record. Senator Al Franken, formerly of Saturday Night Live, went after Judge Gorsuch over a case in which a truck driver was stuck in the snow for hours and left his cargo rather than freeze to death. The company fired the man, who sued to get his job back. According to Judge Gorsuch, the company acted within its rights. Senator Franken said, “I had a career in identifying absurdity, and I know it when I see it. And it makes me question your judgment.”

No doubt other senators had problems with the nominee’s judicial ideology and whether he was sufficiently “mainstream” to warrant a position on the Supreme Court. As the debate wore on, however, it seemed clear that the Republican majority’s mistreatment of Judge Garland hovered over the entire process. The Democrats, still licking their wounds over the fact that Majority Leader McConnell “stole” this Supreme Court seat, banded together, filibustered the nomination, and called McConnell’s bluff.

Except he wasn’t bluffing. Senator McConnell did exactly what he said he would do, and “poof,” no more filibuster. All 52 Republican senators voted to change the rules, so now, instead of needing 60 votes to send the nomination to the full Senate for a vote, a bare majority can do so. And that is what happened, where 55 Senators, including three Democrats from red states, voted to confirm Neil Gorsuch.

It’s not the end of the world. Gorsuch for Scalia is an even trade, more or less, meaning that the Supreme Court will still be divided, 4 and a half to 4 and a half, Justice Kennedy making up both halves. Who knows, Justice Gorsuch may not be as bad as the truck driver case suggests. Neal Katyal, acting solicitor general in the Obama administration, wrote an article in the New York Times in which he attested to Judge Gorsuch’s “fairness and decency.” He is, according to Prof. Katyal, a man who will “help to restore confidence in the rule of law.”

Over the coming years we will find out whether our newest Supreme Court Justice lives up to such optimism, contrary to the dire predictions that have been flooding my email inbox. In the meanwhile, however, we should not turn a blind eye to what is unquestionably bad about what we have just seen – the complete deterioration of bipartisanship when it comes to the Supreme Court. Even while voting with their party, Senators McCain and Collins both predicted that the Senate will come to regret this. As the saying goes, what goes around comes around.

Another thing is bothering me a lot. The Constitution prohibits ex post facto (“after the fact”) laws, meaning that new rules operate for the future. We didn’t invent the idea; it goes back more than 800 years to the Magna Carta.

No one suggested last February that the Patriots, even though they were the home team, could shorten the field by ten yards in the last two minutes as they tried to overtake the Falcons. The rules in place when the game starts stay the same until the game ends.

I know the comparison isn’t exact. Senate rules allow a change in mid-stream, football rules don’t. And what the Senate did isn’t an ex post facto law in the strict sense. But, like Senator Franken, I think I know absurdity when I see it. How is it that a Senate majority can decide to get what it wants by erasing a rule that has been in place as long as anyone can remember and creating a new rule that applies to an existing contest? To my way of thinking, that isn’t much different than moving the goal line late in the fourth quarter.

2017-05-19T20:27:29+00:00 By |