Faculty discuss democracy in light of Gorsuch nomination
The nomination of Neil Gorsuch for the open Supreme Court seat raises many questions about how we understand the U.S. Constitution, the judiciary and the press, a panel of professors said on Thursday.
Panel moderator Prof. Jill Greenlee (POL) emphasized that while the Supreme Court appears a separate, independent and apolitical branch, “appointments to the Court have long been a way for presidents to put allies on the bench.” Confirmation hearings have also been the subject of partisan dispute. Senate Republicans’ refusal to hold a vote on Merrick Garland for the remainder of Obama’s presidency makes Gorsuch’s confirmation process especially contentious.
With Republican-dominated executive and legislative branches, chances are high that President Donald Trump will replace the late Antonin Scalia with another originalist — that is, someone who interprets the Constitution based on how it would have been understood when ratified in 1788.
“Originalism, as a mode of conservative jurisprudence, is of remarkably new vintage,” said Prof. Michael Willrich (HIST), pointing to Reagan’s nomination of Scalia and Robert Bork in 1986 and 1987, respectively.
Prof. Jeffrey Lenowitz (POL) explored originalism further. Upon the death of Scalia, he said he “celebrated the fact that with his passing, one of the most incoherent and disingenuous theories of legal interpretation would stop having an advocate on our country’s highest courts. … As it turned out, my comments were a bit premature.”
“There are good reasons for originalism,” Lenowitz continued, pointing out that framing documents like the U.S. Constitution add stability and predictability. However, he said, the parties involved in framing the Constitution were not of one mind, nor of one interpretation of the same words. “There’s no stable, obvious interpretation that comes from pondering original meaning,” he said.
Prof. Anita Hill (HS) focused on the application of originalism to civil rights issues. Combined with the confirmation of Jeff Sessions as head of the Department of Justice, she said, Gorsuch as a Justice presents a “legal-social-political impact moment,” especially with regards to rights issues. She listed five areas of concern: disability rights, voting rights, immigration, inquiries into police abuse and Title IX protections.
“We can talk about originalism,” said Hill. “We can talk about ideology. But one of the things that I want to say about this moment is that we are talking about real people and real lives.” People must remember those realities during Gorsuch’s confirmation hearing, she said.
Prof. Eileen McNamara (JOUR) shifted the topic to what she described as “political theater” during the confirmation hearings. Those issues have been hard to cover, she said, because the press is understaffed and “putting out a fire every other day.”
Before covering Gorsuch’s hearings, she argued, journalists must delve into his writings beyond court decisions, including his articles and book, so that they may ask the right questions. She doubted, however, that reporters will “ask a serious question” to which “they actually expect an answer.”
“The Democrats can take the position that this is a stolen seat and so this is not a legitimate process,” McNamara said, suggesting that they may take the following approach: “We’re not going to treat it as a legitimate process because it’s unprecedented. So, because of that, we understand that Judge Gorsuch is certainly a qualified candidate … but it’s not about him. It’s about the fact that the Republicans stole our seat.”
Even if Senate Democrats attempt to filibuster a confirmation hearing, she noted, the so-called “nuclear option” could come into play: instead of waiting for a full 60 votes to break the filibuster, Senate Republicans can bring it down to 51.
When that happens, McNamara said, Democrats know well what response they will get: “‘What goes around, comes around,’ because which party eliminated the filibuster on presidential appointees and lower-court justices? That would be the Democrats.”
When asked about the chance of the judiciary reversing the tide of pessimism toward democracy, panelists Willrich and Lenowitz both expressed their skepticism.
“I’m not counting on the Supreme Court to restore public faith in democracy,” said Willrich, adding, “I’d love to be proven wrong.”
“Yeah, I also would say no,” said Lenowitz. “Only because I find it odd that an anti-democratic institution would restore our faith in democracy. I think the Court has always been a bunch of elites imposing their personal morality on the country, and we should expect them to continue to do so, for better or for worse.”
Hill and McNamara were more optimistic. Though Hill agreed that democracy is vulnerable and under attack “at the state and local level,” she showed faith in the courts’ ability to “redeem themselves.”
McNamara concurred: “It was a court, after all, in San Francisco, that pushed back on President Trump’s travel ban,” she said, also expressing faith in the press in these trying times. “The permanent government … is leaking like a sieve. And the Times and the Post are there with buckets, collecting it all.”