Will Republicans regret ending the Supreme Court filibuster?

If Justice Neil M. Gorsuch follows the path of Justice Anthony M. Kennedy, the Supreme Court justice for whom he clerked, 1993-94, Republicans may come to regret that they ended to Supreme Court filibuster to put Justice Gorsuch on the court.  Indeed, let's take this a step farther: if Justice Gorsuch proves to be a clone of Justice Kennedy, Republicans might consider legislation barring nominees to the Supreme Court who clerked for a justice while that justice is still sitting on the court.

It's curious that this issue did not come up while the nomination of Justice Gorsuch was pending.  But then, Democrats would have no cause to complain if Justice Gorsuch ruled under the influence of his mentor.  Adam Liptak pointed out in The New York Times, April 10, that "in important decisions on gay rights, abortion and affirmative action," Justice Kennedy joined the Court's "liberal bloc."

Looking ahead, let's imagine that President Trump's executive orders calling for temporary bans on immigration from seven, and then six, predominantly Muslim countries, reaches the high court.  Will anyone be surprised if Justice Kennedy is part of the majority that upholds the Ninth Circuit decision on that ban?   And if Justice Gorsuch joins that ruling, how long until we hear "as Kennedy goes, there goes Gorsuch"?

In a March 3 New York Times article on the Kennedy-Gorsuch relationship, Adam Liptak, writing with Nicholas Fandos, pointed out that the two had formed a "lasting bond" and that Gorsuch seemed affected by Kennedy's "style and temperament," if not his "moderate views."  Yet Justice Byron White had hired Gorsuch to serve as clerk, effective the summer of 1993 – but Justice White retired in 1992, succeeded by Justice Ruth Bader Ginsburg.  Upon White's retirement, Gorsuch was assigned to clerk for Justice Kennedy.  And the rest has become history – and even more so, perhaps – should the end of the filibuster for all nominees to the federal courts be followed by rulings giving rise to the assertion that never in judicial history did so few justices (one: Kennedy) have so many votes (two: his and Gorsuch's), while Senate Republican leader Mitch McConnell ruefully reflects on the old saw "be careful what you wish for."

Had the filibuster been maintained, the Gorsuch nomination would have been defeated, President Trump would have made another nomination, and eventually he would have succeeded. 

Perhaps it is also worth noting that Republican president Ronald Reagan, in 1987, named Judge Kennedy to serve on the Supreme Court – from his post on the Ninth Circuit Court of Appeals.  Should Justice Gorsuch prove to rule in tandem with Justice Kennedy, while Gorsuch comes from the Tenth Circuit, he could be seen to be, really, one justice removed from the Ninth Circuit judicial mindset.

If Justice Neil M. Gorsuch follows the path of Justice Anthony M. Kennedy, the Supreme Court justice for whom he clerked, 1993-94, Republicans may come to regret that they ended to Supreme Court filibuster to put Justice Gorsuch on the court.  Indeed, let's take this a step farther: if Justice Gorsuch proves to be a clone of Justice Kennedy, Republicans might consider legislation barring nominees to the Supreme Court who clerked for a justice while that justice is still sitting on the court.

It's curious that this issue did not come up while the nomination of Justice Gorsuch was pending.  But then, Democrats would have no cause to complain if Justice Gorsuch ruled under the influence of his mentor.  Adam Liptak pointed out in The New York Times, April 10, that "in important decisions on gay rights, abortion and affirmative action," Justice Kennedy joined the Court's "liberal bloc."

Looking ahead, let's imagine that President Trump's executive orders calling for temporary bans on immigration from seven, and then six, predominantly Muslim countries, reaches the high court.  Will anyone be surprised if Justice Kennedy is part of the majority that upholds the Ninth Circuit decision on that ban?   And if Justice Gorsuch joins that ruling, how long until we hear "as Kennedy goes, there goes Gorsuch"?

In a March 3 New York Times article on the Kennedy-Gorsuch relationship, Adam Liptak, writing with Nicholas Fandos, pointed out that the two had formed a "lasting bond" and that Gorsuch seemed affected by Kennedy's "style and temperament," if not his "moderate views."  Yet Justice Byron White had hired Gorsuch to serve as clerk, effective the summer of 1993 – but Justice White retired in 1992, succeeded by Justice Ruth Bader Ginsburg.  Upon White's retirement, Gorsuch was assigned to clerk for Justice Kennedy.  And the rest has become history – and even more so, perhaps – should the end of the filibuster for all nominees to the federal courts be followed by rulings giving rise to the assertion that never in judicial history did so few justices (one: Kennedy) have so many votes (two: his and Gorsuch's), while Senate Republican leader Mitch McConnell ruefully reflects on the old saw "be careful what you wish for."

Had the filibuster been maintained, the Gorsuch nomination would have been defeated, President Trump would have made another nomination, and eventually he would have succeeded. 

Perhaps it is also worth noting that Republican president Ronald Reagan, in 1987, named Judge Kennedy to serve on the Supreme Court – from his post on the Ninth Circuit Court of Appeals.  Should Justice Gorsuch prove to rule in tandem with Justice Kennedy, while Gorsuch comes from the Tenth Circuit, he could be seen to be, really, one justice removed from the Ninth Circuit judicial mindset.

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