Filed under: 60 Votes needed, Gorsuch, Mitch McConnell, Senate, Supreme Court Nominee, Tea Party
Congress and the Presidency are independently elected while the judiciary is not. The members of the Judiciary are appointed and confirmed by the two other branches of government but not independently elected.
While the judiciary is a check on the constitutionality of the other branches activities it is also appointed and confirmed by those branches.
In situations where one party has the Presidency and a majority in the Senate it is necessary to insure bipartisan support for confirmation in the Senate to protect against one party co-opting dominance in two or three branches of government.
In the case of non-Judicial appointments by the President those appointments usually last as long as he holds office. In the case of judicial appointments they are for life and the appointees serve through many administrations. Thus insuring stability in a democracy for all citizens and residents of the United States.
At least 60 Senate votes for confirmation tends to insure but not guarantee ( it is conceivable one Party may control 60 or more votes at some time) bipartisan support for a nominee and that the appointee will not serve as a political ally of those who nominated and confirmed him or her through the 30 or so years he/she is likely to serve on the Supreme Court. The Supreme Court is considered to be apolitical and neutral in its interpretations.
At preset we have Justice Clarence Thomas who holds what was once thought of the Thurgood Marshall seat, if any seat can be considered in the philosophy of the prior holder. He was confirmed by a vote of 52 to 46. Also Justice Samuel Alito was confirmed by a 58 to 42 vote. Since the Eisenhower presidency no other nominees has been approved with less than 60 votes unless it was by voice vote which is considered to be by an overwhelming majority of the Senate.
Justices confirmed with less than 60 votes tend to polarize the Supreme Court and make it more difficult that a consensus opinion will be reached. Thus in recent years 5-4 decisions are often the nom and since Justice Scalia’s death 4-4 decisions are frequently seen. Thus polarization of the court is more likely to be seen when Justices are confirmed with less than 60 votes and often the vote is split along political or ideological grounds by Justices who are unwilling to compromise.
Thus in the present instance Judge Gorsuch should be confirmed with at least 60 bi partisan votes to end the present standoff which has resulted in one Justice, Kennedy, often casting the deciding vote for one side of the other.
The Supreme Court needs more centrists that can bridge the present divide and who can fashion a ruling that is fair to all people and not just the party in power or the one that appointed them.
In the case of nominee Merrick Garland he was nominated by President Obama after Justice Scalia died February 13, 2016, he was nominated June 24, 1986 and confirmed September 17, 1986 in less than three months.
Garland was nominated March 16, 2016 but never received a vote because of the Senate republicans led by leader Mitch McConnell refusal to recognize a nominee by a Democratic President in an election year.
This was unprecedented for McConnell and the Senate Republicans to flout their constitutional duties and not give a nominee duly appointed by a President under his constitutional duties a vote on the Senate floor. Garland may have garnered 60 or more votes. Then there would have no need to nominate the present nominee and Garland would have been an appointee of both sides rather than a one party confirmation that Gorsuch seems to be headed for.
Thus we are headed for a Justice approved by a partisan vote who may serve for at least 29 years just as Justice Scalia did. He may gain approval if McConnell suspends the filibuster rule and lets a majority vote decide. The filibuster rule has been long seen as a safeguard to our democracy and against one party rule. The question arises will McConnell bow to tea party pressure groups to allow confirmation of Gorsuch by a simple majority.
This is not what the founders envisioned for an independent judiciary as a check on the other branches of government. Thus Judge Gorsuch should be confirmed by at least sixty votes.