The Corner

Law & the Courts

Get Ready for a Normal Fight

I may eat my words within hours, but after days of some of the most bizarre and over-heated political arguments in recent memory, we might actually have a “normal” political fight on our hands. It looks like Trump is set to nominate (whether it’s Neil Gorsuch or Thomas Hardiman) an intellectually serious, deeply respected, and utterly mainstream (in good ways) conservative jurist. There is nothing radical about either Gorsuch or Hardiman, unless you’re one of the breed of people who believes that consistent, serious and predominantly originalist jurisprudence is extremist. 

But when it comes to the Supreme Court, “normal” fights are always super-heated, so look for progressives to try to force Democratic senators to filibuster the nomination — as a marker that they’re down with the #resistance. At that point the questions will be clear. We know there will be demands for a filibuster, but will vulnerable Democrats senators choose to placate their base and deal with the potential electoral fallout later? And if they do appease the base, will the GOP senate extend Harry Reid’s nuclear option to SCOTUS nominees? I tend to think that the mere threat of the nuclear option will cause Democrats to retreat from a filibuster, especially when dealing with a Scalia replacement. If Gorsuch or Hardiman were replacing, say, Ginsburg or Breyer, then all bets would be off.

We can’t know the future, and this may be Donald Trump’s only Supreme Court nomination. Regardless, it appears this decision will be a good one, and either Gorsuch or Hardiman will deserve full-throated conservative support. 

UPDATE: Ramesh is reporting that it’s Gorsuch. Read his excellent profile of Trump’s pick. I concur with his conclusion:

Tonight, President Trump will nominate a careful and thoughtful judge whose jurisprudence is squarely in the mainstream of legal conservatism. Gorsuch shares Scalia’s philosophy and intelligence, if not his acerbity, and in selecting him Trump has made good on a crucial campaign promise.

He has indeed.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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