April, 2017
Washington -- There is a reason for Senate Democrats and even Republicans to vote against the confirmation of Judge Gorsuch. It is not based on:
• his judicial philosophy
• his unwillingness to answer questions at his confirmation hearing
• his being out of the mainstream (witness his opinion on services to handicapped children being overturned 8-0 by the Supreme Court during his hearing)
• payback for shabby treatment of Judge Garland the previous year
• partisanship
Rather, it is based on separation of powers and the system of checks and balances provided by the Constitution. When one branch overreaches, the others have remedies at their disposal. In this case, the overreach was the Supreme Court's Citizens United decision, in which an activist court majority overturned Congressional legislation on campaign finance. Whereupon political organizations created "dark money" operations that have funded advertising campaigns to pressure Senators to confirm Judge Gorsuch. The result of this effort would require the Senate to change its own rules and diminish the body as an institution that protects minority rights and encourages compromise.
The remedy is for the Senate to vote no on the dark money nominee, as provided in the Constitution.
Recall a similar challenge to Congress posed by Richard Nixon when he aggressively impounded funds appropriated by Congress for programs he did not support. Had Nixon's actions not been met with resistance, Congress's power of the purse, granted by the Constitution, would have been severely undermined. Congress responded with the Budget Impoundment and Control Act of 1974, putting the executive branch back in its constitutional place, not just for the programs at issue but for the principle of separation of powers.
The Senate should do likewise on this occasion, to act on constitutional principle rather than on the merits or lack thereof of the particular nominee at issue. This is a test of the Senate as an institution and fundamentally an issue of our system of checks and balances.
