The declaration Tuesday night by Sen. Chuck Schumer, the leader of Senate Democrats, that "the burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream" poses a crucial question: Where is today's mainstream?
In the coming confirmation battle over President Donald Trump's nomination of Gorsuch to the Supreme Court, we're about to find out.
The New York senator's implied threat is a resonant one, harking back to the titanic battle 30 years ago over President Ronald Reagan's nomination of Robert Bork. Bork was "out of the mainstream" and would "turn back the clock" on civil rights, his opponents charged as they succeeded in marshaling a bipartisan coalition that defeated his nomination with 42 votes in favor and 58 against.
By framing the goal as preserving the constitutional mainstream, the Bork opposition's success necessarily defined the mainstream that existed in 1987. And the success seemed to go deeper, not only identifying but ratifying certain principles as being correct and beyond debate: that contrary to Bork's view, the Constitution encompasses a right to privacy that includes abortion; that the First Amendment protects much more than the political speech that Bork claimed as its only legitimate focus; that the Civil Rights Act of 1964 is valid in all particulars. Bork, in a notorious article in the New Republic, had denounced the public accommodations provision of the law as based on "a principle of unsurpassed ugliness," namely that government can override personal choices and "coerce you into more righteous paths."
But just as the Mississippi River changes course over time and redefines the boundary between Mississippi and Louisiana, the constitutional mainstream isn't static. No participant in the Bork battle could plausibly have maintained, for example, that the Second Amendment protects an individual right to own a gun, as the Supreme Court would decide two decades later. Few if any anticipated the degree to which the First Amendment's protection for commercial speech would be turned into a powerful deregulatory tool.
The notion that a Supreme Court majority would invoke the Constitution to cut the heart out of the Voting Rights Act of 1965 would have been dismissed out of hand. The idea that the Commerce Clause was insufficient to empower Congress, as an aspect of regulating a national market for health care, to require people to acquire health insurance, would have seemed bizarre; the court had not invalidated a federal law on Commerce Clause grounds since the 1930s. And only a year before the Bork nomination, the Supreme Court rejected as "facetious" the claim that the Constitution prohibits criminalizing consensual gay sex.
Bork's insistence that the Constitution must be interpreted in light of the original understanding of its authors, a view Gorsuch is said to share, was a fringe notion in 1987. Anthony M. Kennedy, the federal judge confirmed to the seat after Bork's defeat, reassured the Senate by rejecting originalism; the Constitution's framers had "made a covenant with the future," he declared at his confirmation hearing. The originalism championed by Justice Antonin Scalia — who was a year into his own tenure when Kennedy joined the court — and Justice Clarence Thomas has never gained a Supreme Court majority. But along with the propositions embodied in majority opinions over the past three decades, originalism has indisputably moved from "off the wall" to "on the wall," to borrow an image from professor Jack Balkin of Yale Law School.
All of which is to say that mainstreams respond to the gravitational pull of an evolving social consensus and to the push of political mobilization. Does Trump's bypassing of Judge William H. Pryor Jr., the shortlisted nominee favored by most social conservatives, mean that the current mainstream does not include the view that Roe vs. Wade was "the worst abomination of constitutional law in our history," the pithy characterization that Pryor has never disavowed? Or do the president's judge-vetters have reason to believe that Gorsuch shares a dim view of Roe but would approach its dismantling with greater subtlety?
Progressives emerged from the Bork battle confident that the mainstream was theirs, that they had leveraged a constitutional consensus to defeat a nomination that threatened it. The past 30 years have shown that consensus to be evanescent, if it ever really existed. But it's important to emphasize that the conservative victories of recent years were razor-thin and remain deeply contested. The Republicans' shameful blockade of the Merrick Garland nomination was an effort to freeze those victories in place while waiting for a resurgent conservative majority to ratify and strengthen them.
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Supreme Court confirmation hearings are justly derided for the scripted questions from senators and the non-answers from nominees. But in their clumsy way, they serve to define the mainstream of the day. It may be scant comfort to progressives — perhaps the only comfort available to them at this freighted moment — that today's mainstream is not necessarily tomorrow's.
© 2017 New York Times