University of Denver

IAALS Criticizes the United States Senate’s Passage of the “Nuclear Option”

Founding Executive Director

Now that a simple majority of votes suffice to confirm a Supreme Court Justice, each party will invariably put forward the most ideologically-extreme candidates that they can. No more moderates, no more coalition-builders, no more impartial judges. Rather, the Court could be populated, over time, by judges who have partisan instincts or agendas—maybe even by judges who have a particular alignment with the president who nominates them.

What a terrible idea: replicate the legislative bodies that are split down the middle, unable to listen to one another and ride blindly into a future marked by controversy rather than by consensus. What a terrible idea: confirm the suspicions of the American public that judges are nothing more than politicians in robes who vote their own preferences.

Judges are supposed to be the guardians of the Constitution, not ideological, not driven by personal agendas, and not beholden to any interest group. Courts are supposed to be, above all, fair and impartial. If judges express an intent to rule a particular way on a particular issue in advance, fairness goes away. If judges cater to a particular group over another group, partiality prevails.

It is a dark day for America that the Senate has resorted to this tactic over the nomination of Judge Neil Gorsuch—a man of impeccable credentials, bipartisan support among those who know him best, and an absence of either a personal or political agenda. He should have garnered bipartisan support and likely would have, but for the Merrick Garland-rancor, understandable though it may be, and the tit-for-tat mentality.