It’s been a tumultuous past year for the U.S. Supreme Court, a body that’s expected to be apolitical and neutral.
After Justice Antonin Scalia’s suden death, the Republican majority in the Senate refused to hold confirmation hearings for Merrick Garland, President Barack Obama’s pick to replace Scalia.
Now, President Donald Trump has nominated appellate Judge Neil Gorsuch to fill the open position and some Democrats are saying they should refuse to confirm him in retribution for Garland.
Dahlia Lithwick, the Supreme Court correspondent for Slate, recently sat down with OPB’s Laura Klinkner to talk about her predictions for the nation’s highest court.
Q&A with Dahlia Lithwick
Laura Klinkner: Oregon Sen. Jeff Merkley has said that he will oppose Gorsuch’s nomination because he considers the seat to have been stolen from Garland. What are your thoughts on that approach, and is it mere payback?
Dahlia Lithwick: No, and I actually think Sen. Merkley has been an absolute leader on this issue. I think he has put into words what other folks are feeling but not able to connect to. I think that he has really said, “This is not Trump’s seat to give, this was Obama’s seat to give.”
If you think about what was going on in September and October, we were hearing Ted Cruz and we were hearing John McCain say, “If Hillary Clinton wins, we’re gonna block her nominees for four years.” This is about power. This is not about norms, this is not about civility, this is not about Senate rules, this is not about the Constitution and advise and consent.
This is about whoever is in power gets what they want. And I think what Merkley is trying to give voice to is, “No, no, we’re not gonna get rolled like that.”
LK: Will this sort of wrangling for power be the norm going forward?
DL: I think if you ever again have a Senate that is not of the same party as the president, it’s just going to be this. And there’s no reason for it not to be this anymore.
I think the feeling is payback if the Democrats ever get the opportunity to seat someone, and payback for the payback next time Republicans get to do it.
There’s clearly a breakdown of the norm of senators voting for qualified people, regardless of party affiliation. That’s gone. And I can’t envision it coming back.
LK: You’ve said that Trump is ‘at war’ with the judiciary. Could you talk a little bit more about what makes you say that?
DL: Well, I think it’s important, in fairness, to say every president has criticized the judicial branch.
Certainly, Barack Obama had unkind things to say about Citizen’s United (the case that deals with corporate campaign donations). It’s rare for a president to graciously say, “I love it when justices don’t let me get my way,” so that’s the baseline.
What is not baseline is calling judges “so-called judges” on Twitter because you don’t like their ruling, or saying, “These judges of the 9th circuit, when there’s a terror attack, it’s on them. Everybody look at them.” That’s not the same.
I don’t think this is just an attempt to push back on judicial outcomes that he doesn’t like. I think this is a view of unfettered executive power with the twist that when you don’t get what you want, you try to delegitimize the entire institution. That’s different.
LK: How do you feel about Gorsuch as a nominee, and what do you think people should now about him?
DL: This is somebody who’s clearly Scalia-like, maybe fractionally more so, but certainly very, very conservative. And that’s not, I think, in dispute. So then, I think the question becomes, if you really have a president who is taking the legal posture that his powers are unreviewable, by the court — if that’s his posture, it seems to me that the Gorsuch nomination has to be about one issue and one issue only, and that is, “Do you agree with that?”
Seems to me that probing his views on executive authority, that’s got to be laser focus during confirmation hearings. And we actually don’t know very much about him, because the 10th Circuit doesn’t do a lot of executive power cases. To fail to turn that hearing into a four-day infomercial about why we need a counter-majoritarian, independent judicial branch, seated for life so that the whims of the president do not affect them [would be really problematic].
LK: What issues could you see as being prominent in the court in the near future?
DL: I’ve got to tell you, this court is going to change in the next few years, and it’s really important, I think, for folks to understand that this president may seat two or three judges.
Gay rights, voting rights, reproductive rights — every single thing that was off the table two years ago could be back on the table. Vote suppression, voter ID, all that is coming back.
Even though some of her predictions are grim, Lithwick said she still believes the people have the power to affect big changes. In her keynote address at the ACLU of Oregon’s Liberty Dinner in February, she told the guests:
“Norms can’t fight for themselves, judges can’t fight for themselves, but the people all around the country, they can fight for those institutions, and now they must.”