If asked the trivia question of how many justices sit on the United States Supreme Court, the answer used to be nine. But for about a year, one seat has remained vacant after the unexpected passing of conservative Justice Antonin Scalia in February 2016.
After the death and a grace period, then-President Barack Obama nominated Judge Merrick Garland to the seat. The Constitution states that Garland needed to first be confirmed in the Senate before taking the bench of the highest court. However, the Senate never held a hearing in all of 2016. Republican Majority Leader Mitch McConnell repeated that a new Supreme Court nominee during an election year would be unfair to the American people, even though the election was 6 months and a judicial period away. And thus, Merrick Garland’s chance of sitting on the highest court in the country came and left within the year.
With a new president and a Republican Senate, the new nominee is Judge Neil Gorsuch. Young and attractive with a traditionally conservative record, Gorsuch is nowhere near as divisive as the president who nominated him. However, his record is not digestible for a lot of Democrats. Gorsuch has repeatedly ruled against the rights of everyday workers and has received millions from donors in past campaigns. In one case, he wrote a dissenting opinion that a company had the right to fire a truck driver who abandoned his broken-down truck for his own safety in sub-zero temperatures. Also, in a case in which a family was seeking subsidies under a federal disabilities law for sending their autistic child to a specialized school, Gorsuch ruled against them. This week the Senate held Gorsuch’s first confirmation hearings. In his hearings, Gorsuch left open the possibility of re-“analyzing” past court decisions like Roe v. Wade that grants women’s right to make her own decisions concerning reproductive rights.
Even though Republicans have a majority in the Senate, they still need votes from Democrat senators to confirm Gorsuch to the court. Unfortunately, those votes may not be hard to get. There are a handful of moderate democrats in the senate up for reelection in 2018 whose hands may be forced to vote against the party’s wishes and vote ‘yes’ on Gorsuch. Joe Donnelly, Indiana’s only Democratic senator, may be one of them. Donnelly has been the focus of attack ads backed by big money urging him to confirm Gorsuch. Other democratic senators from states like West Virginia, South Dakota, and Missouri have seen similar ads. Trump won all of these states in 2016.
These democrats should vote no on Gorsuch because he does not have a clear record on big money donations as well a dismal history of advocating for worker’s rights. However, if these democrats vote to confirm him, they should be forgiven. Some progressive groups have threatened to offer up more liberal primary challenges to senators who switch their vote to Gorsuch. But primary challengers to incumbents in 2018 would weaken the party, as well as take necessary funds for general elections. In a time where the court is likely to remain divided and liberal control is weak, we should not create further divisions in the Democratic party.