Neil Gorsuch and the ‘Nuclear Option’

Same topic, different views

By Tim Baldwin and Joe Carbonari

By Tim Baldwin

Judge Neil Gorsuch is qualified to be Justice of the United States Supreme Court, but most of the Democratic senators, including Montana Sen. Jon Tester, aren’t having it. Their opposition appears based mostly on opposing Trump. Republican leadership is entertaining the “nuclear option,” to change the Senate rules to allow a simple majority to approve Gorsuch’s nomination, rather than a supermajority. Is this the best decision?

There are good reasons to require a supermajority on decisions that affect America for generations, like approving a Supreme Court justice. Similarly, the Constitution requires a supermajority of states to amend the Constitution. A minority opposition has tremendous power to, say, block passage of a nomination of a justice or amend the Constitution, but some criticize the supermajority-rule philosophically because it prevents the will of the majority from deciding. They call it anti-democratic. The Federalist Papers address these issues thoroughly.

Requiring a supermajority has solid foundation, however, in the history and philosophy concerning republics, which are designed to curb the irrational and dangerous passions of the majority. It requires the majority to convince a sufficient number of the minority to support their decision, thus requiring collaboration among a cross-section of society.

It would be good to approve Judge Gorsuch, but maybe not at the expense of a long-held tradition and philosophy designed to unify Americans on major decisions.

By Joe Carbonari

Judge Neil Gorsuch will likely be confirmed by the U.S. Senate. The reason that he shouldn’t is the same as the reason that he should. His thinking tends to the rigid – a literalness, as he defines it. He is concerned that agency regulations threaten our personal freedoms. He is correct, but so do traffic laws.

The danger is that in protecting our freedoms from the overreach of administrative rules we will lose the protections that they represent. Think clean air and water, workplace safety, financial transparency and much more. Yes, there is and can be overreach. Congress must protect us from them and address them. Agencies, however, need the ability to make and enforce the detailed guidelines that our ever-changing, increasingly complex society requires. Congress itself is too slow and unwieldy to handle the details in a timely manner.

Congress sets the basic parameters, the agencies write the detailed rules, and the courts deal with miss-applications and overreach. It is our system, evolved as our nation has grown and prospered. The administrative state is necessary, as is our protection from it. Gorsuch represents that protection.

He also presents the threat of over-response, and the dismantling, as some call for, of the flexibility inherent in administrative rulemaking. It is necessary to our nation’s well-functioning and safety.

Democrats should abstain from the filibuster and Republicans should abstain from the nuclear option. Freedom requires restraint.

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