The Senate exercised its “nuclear option” on a stormy day in Washington (with a possible tornado 30 miles away) after the Democrats threatened a filibuster on the nomination of Neil Gorsuch (New York Times account ). That means that from now on, a simple majority will confirm Supreme Court appointments. If Republicans (counting Trump) stay in power for the next year, it will be pretty easy for them to stack the court.
I’m reasonably confident that the new nominees would regard marriage equality as settled law. But they won’t bend over backwards to protect LGBTQ people fired from jobs (even with some federal funding) over “religious freedom”, even if such incidents are uncommon and extreme. They probably will side with the 11th Circuit (rather than the 7th) on how Federal Civil Rights law is read with respect to some gender issues. They won’t help transgender people in states that don’t want to allow birth certificate changes. And so on.
Yet, I don’t join resistance movements over hopeless fights over appointments.
Ezra Klein has a video on Vox supporting Democrats’ protesting one last time, and thinks the filibuster should disappear anyway. I couldn’t find the right URL, so it’s on my Facebook book page right now, here.
I agree, the Senate should only confirm moderate judges who represent the people, regardless of whose party is in control. But, as Klein himself says, we have weak parties and strong partisanship.
I personally that that “original meaning” of anything has to be interpreted in light of science or technology that has developed since (and this particularly true of the Internet).
Elie Mystal has an article summarizing the case Trans Am Trucking v. Department of Labor, where Gorsuch dissented with a decision in favor of a truck driver who drove an unhitched cab instead of waiting for assistance in extreme cold, and was fired because company policy didn’t allow him to do that. Gorsuch interpreted the law very literally, even given unusual life and death circumstances. Franken grilled him on the confirmation hearings, and Democrats wanted to hang the disapproval on this case.
The ”nuclear option” had been used in 2013 for lower court judge confirmations.