On Justice Gorsuch

Congratulations to Neil Gorsuch, who tomorrow becomes an Associate Justice of the Supreme Court.  Gorsuch replaces Antonin Scalia, who died on February 13, 2016, nine months before the Presidential election.

Gorsuch's nomination and confirmation have generated a lot of attention and controversy, but so has every recent confirmation process.  Why is that?  I see the two following factors as the primary reasons for the heightened controversy:

Courts themselves have become a super legislature

The Supreme Court, as is the case with all courts, makes decisions on issues that previously have been reserved to executives, and more commonly, legislatures.  Think about it:  Five high powered lawyers (majority of the nine justices) from elite law schools make legal and policy decisions that impact the lives 325 million people - and unlike the other branches of government, these lifetime judges do not face the voters.  The only true limitation on their powers is how they themselves interpret the Constitution, legislation, and regulations as well as their role as a co-equal branch of government. 

What isn't loud, controversial, and partisan these days?

With social media buzzing, while sensational journalism and advocacy groups stoke the flames for big dollars, should anyone be surprised that a lifetime appointment to the Supreme Court generates attention at the highest decibel levels?

** One footnote that should be considered by those who write and read history books:

But for Justice Scalia's death, Donald Trump might not be President

Read that statement again.  Is it true?  I think so.  Consider the many reasons why Americans voted for President Trump.  Of those reasons, where does "He will appoint the next Supreme Court Justice" fall?  If that is near, or at the top of the list, is it also true that if no vacancy existed, voters would have been less motivated to vote for President Trump?  Again, I think so.  Many voters chose Trump specifically because he pledged to appoint to the Court someone like Justice Scalia.  But to what extent was the impact?  No one will ever know.  But by not confirming President Obama's Supreme Court nominee (Judge Merrick Garland) prior to the election, the Republican Senate not only ensured the continued ideological balance of the Court, but also helped President Trump win the election.  Said another way, by dying prior to election day, Justice Scalia helped steer the election outcome towards a Trump victory, which appears to have ensured a legacy of a Supreme Court that, at least in the short-term, is similar to the one Justice Scalia left behind.