The Corner

Law & the Courts

Pick a Lane, Chuck

Alexandra notes that Chuck Schumer intends to filibuster Neil Gorsuch.

Schumer said he remained unconvinced that Gorsuch would “be an independent check” on President Donald Trump. Gorsuch, he asserted, is “not a neutral legal mind but someone with a deep-seated conservative ideology. He was groomed by the Federalist Society and has shown not one inch of difference between his views and theirs.”

So far, no senators have officially agreed to join Schumer’s filibuster, but Bob Casey Jr., a Democrat from Pennsylvania, announced this morning that he will oppose Gorsuch’s nomination. In his statement, Casey cited as a concern Gorsuch’s “rigid and restrictive judicial philosophy that employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive branch agencies.”

Schumer can, of course, do whatever he likes, and for whatever reason. The Senate is an equal partner in the judicial appointment process, and the filibuster applies in this case. If Schumer can convince enough of his fellow senators to join him, he can kill the nomination fair and square. That’s the American system.

Practically, though, he’s going to have to get his party to pick a lane. Look at the two claims that Alexandra quotes above. According to Senator Schumer, Gorsuch is unsuitable because he won’t check President Trump. But according to Bob Casey, Gorsuch is unsuitable because he’s a “rigid and restrictive” separation-of-powers zealot who “exercises extreme skepticism, even hostility, toward executive branch agencies.” Well, which is it? Either Gorsuch will act in lockstep with the president, or he’ll be implacably hostile toward his administration and gum up the works at every step. But he can’t do both.

And what of the broader threat that Trump presents — another Democratic theme? Is the president a dangerous, power-mad authoritarian who must be stopped at all costs — including by the courts? Or he is a run-of-the-mill ideologue whose biggest flaw is his preference for Congress and his dislike of the Chevron Doctrine? Again: He can’t be both. Before he rises to speak through the night, Schumer should probably have a good answer to these questions.

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