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Dispatch from the Parallel Universe on Gorsuch Confirmation Vote


Adam Liptak and Matt Flegenheimer report from the parallel universe of the New York Times on the Gorsuch confirmation vote:

Friday's vote was only possible after the Senate discarded longstanding rules meant to ensure mature deliberation and bipartisan cooperation in considering Supreme Court nominees.
Here in this universe, the requirement of a supermajority to terminate debate has never been a significant factor in Supreme Court confirmations.  Abe Fortas in 1968 did not have even majority support, so while the filibuster was used it was not necessary.  All the Supreme Court nominations since then have either gone to a vote or been withdrawn when it was clear that the nominee did not have even majority support.  The number of Supreme Court nominees in American history who have been denied confirmation because they had majority support but less than the supermajority required for cloture is precisely zero.
But neither side harbored any doubts, based on the judge's opinions, other writings and the president who nominated him, that Judge Gorsuch would be a reliable conservative committed to following the original understanding of those who drafted and ratified the Constitution.
In the Parallel Universe, original understanding points reliably toward conservative results.  In this one, as readers of this blog and people who followed Justice Scalia's jurisprudence know, sometimes original understanding yields a result cheered by our friends on the political left.

It was perhaps the most audacious escalation in a series of precedent-busting Senate skirmishes in recent decades -- tracing from Democratic opposition to Judge Robert H. Bork and Justice Clarence Thomas to the wide-scale use of the filibuster by Republicans under Mr. Obama.
In this universe, it was the Democrats who first made widescale use of the filibuster for district and circuit judge nominees during the administration of President George W. Bush.  In the PU, that is only something those wascally Wepublicans use to "pin blame."

Update:  Darla Cameron reports for the WaPo on the confirmations of the justices from Scalia to Gorsuch.  The subtitle notes, "no Supreme Court nominee has ever been blocked by a single-party filibuster."


In 1991 the Democrats chose not to filibuster Clarence Thomas and he was confirmed by a vote of 52-48, with eleven Democrats voting for confirmation.

The Democrats insisted on the filibuster for Judge Gorsuch, hence the rule change, yet he was confirmed by a vote of 54-45, with three Democrats joining Republicans in support.

Is Justice Thomas more or less legitimate than Justice Gorsuch because he got more Democrat votes?

"...as readers of this blog and people who followed Justice Scalia's jurisprudence know, sometimes original understanding yields a result cheered by our friends on the political left."

Doug Berman noticed this immediately after Scalia's death, but the NYT is nowhere near as honest as Prof. Berman.


"...and bipartisan cooperation in considering Supreme Court nominees."


What the NYT ignores -- or more correctly, covers up -- is that the Democrats were not going to "cooperate" with ANY nominee ANY Republican President would have chosen.

The Democratic strategy, of which the NYT is a leading proponent, is to use the courts to enact a leftist legal agenda they know they can't get through Congress. "Living Constitution" judges will go along with that, and originalists won't. That's the whole deal with the opposition to Gorsuch, as the NYT full well knows.

By coincidence, I am going to a DC bookstore Sunday to hear about a new book entitled "The Unexpected Scalia". The book discusses how Scalia's jurisprudence cannot be fit neatly into today's conservative/liberal dichotomy. This is something that those of us who practice criminal law knew already. As for the filibuster, its pedigree as a constructive means of promoting deliberation and bipartisanship is murky at best.

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