Supreme Court nominee Judge Neil Gorsuch is approached by members of the media in Washington on Thursday. Mr. Gosruch’s nomination shed light on longstanding divisionsMark Wilson/Getty Images
Only rarely do the three separate, equal and sometimes-conflicting branches of the U.S. government converge on one political issue, but this winter's collision over President Donald Trump's selection to fill a Supreme Court vacancy has engulfed them all in a high-stakes conflict that illuminates the emerging new politics in the United States today.
When Mr. Trump exercised his right as the chief of the executive branch to shape the highest level of the judicial branch, he threw the legislative branch into the first consequential battle of the Trump era, underlining the rivalries and resentments that are likely to define the next four years. And while some of the elements of this clash grow out of the ascendancy of Mr. Trump to the presidency, many of the components of this conflict were years in the making.
In any political atmosphere, the selection of Judge Neil Gorsuch – a devoutly conservative scion of a controversial Colorado political family reviled by liberals and environmentalists – to replace the late Antonin Scalia would cause angst among Democrats, worried that the new jurist might help overturn abortion rights and erode civil rights.
For subscribers: Trump's Supreme Court pick Neil Gorsuch may be most traditional choice he's made
Related: Trump names conservative judge Neil Gorsuch as U.S. Supreme Court pick
But Mr. Trump's scathing critique of various judges as "disgraceful," combined with the failure of the Republicans who control the Senate even to hold hearings on Judge Merrick Garland, former president Barack Obama's selection for that vacancy, has sent the Democrats into a white fury, prompting vows to kill the Gorsuch nomination and threatening a paralysis in the high court.
So in an episode this week, culminating with Mr. Gorsuch's comments that the Trump remarks were "disheartening," all of the hurts, bitterness and rancour of the past quarter-century have been exposed: Deep partisanship on Capitol Hill. Political polarization in the public. The politicization of the U.S. judiciary. The upheaval of the populist insurrection that Mr. Trump identified a year ago and harnessed in the election three months ago.
"All of the moving parts in American politics are encapsulated in this fight," said former GOP congressman Mickey Edwards of Oklahoma, a one-time national chairman of the American Conservative Union who held an endowed lecture chair in legislative politics at Harvard. "The problem is that both parties now have litmus tests. The idea of independent judiciary is in danger, but so is the idea of an independent legislature."
The result is that the business of U.S. politics no longer has the tint of business-as-usual. In the past, Supreme Court nominees generally were approved regardless of the ideological rigidity of the nominee. Some 30 years ago the most ardent conservative jurist of the age, Mr. Scalia, was approved by a 98-0 margin. About 25 years ago, the leading liberal jurist of the time, Ruth Bader Ginsburg, was approved on a 96-3 vote. The nomination of Mr. Garland was deferred by GOP leaders because they feared he was a liberal, and the nomination of Mr. Gorsuch is threatened because Democrats know he is a conservative.
Mr. Gorsuch's expression of indignation Wednesday at Mr. Trump's commentary on various judges may help mollify liberals and win him some credibility among Democratic skeptics, but his very nomination underlined the importance that the Supreme Court – today roughly divided between four liberals and four conservatives – has in contemporary U.S. politics.
About a fifth of those who voted in the 2016 election identified Supreme Court appointments as "the most important factor" in their decision. More than half of those who identified the high court as the pre-eminent issue voted for Mr. Trump. The President, elected without a majority, knows that this is no peripheral issue for his constituency.
In the end, Supreme Court nominees are tasked with settling cases. In this case, a Supreme Court nominee has unsettled all of U.S. politics.
Now that Mr. Trump has, like a medieval knight, thrown down the gauntlet, the fight begins – an early but vital test both for his administration and his Democratic rivals. That armoured glove on the political landscape immediately created multiple complications, some procedural (should the Senate change its rules to ease Mr. Gorsuch's way to the high court?), some purely political (should Democrats who face the voters next year in states carried by Mr. Trump find reasons to support Mr. Gorsuch to bolster their own re-election prospects?).
Both questions have the potential to resolve the Gorsuch issue but to leave broad questions in U.S. politics unresolved.
By changing the Senate rules, essentially permitting Mr. Gorsuch's nomination to proceed with the support of 50 lawmakers rather than 60, the Republicans would infuriate the Democrats even as they endanger their own prerogatives the next time a Democratic president presents a Supreme Court nominee to a Senate with a small Democratic majority. Or, by siding with Mr. Gorsuch in a bald effort to salvage their own re-elections, endangered Democrats very likely will create a schism within their own caucus and undermine both the trust and the unanimity that a minority party requires to have any influence in the chamber.
Already some Democrats have drifted from the party's buoys, evidence that in the end Mr. Gorsuch may prevail. Senator Joe Manchin of West Virginia took on the noticeable gesture of introducing Rick Perry, Mr. Trump's selection for energy secretary, at the former Texas governor's confirmation hearings; both men represent energy states, to be sure, but Mr. Manchin, facing re-election next year, also knows that Mr. Trump carried his state by 42 points in November. Mr. Manchin's support of the controversial nomination of Senator Jeff Sessions as the Trump administration's Attorney-General is a further hint he may be congenial to supporting Mr. Gorsuch for the Supreme Court.
In all, 10 sitting Democratic senators are seeking re-election in states where Mr. Trump prevailed. One of them, Senator Heidi Heitkamp, is running for re-election in North Dakota, where Mr. Trump's victory margin was 36 points. The state's other senator, its lone member of the House of Representatives, and its Governor all are Republicans, leaving Ms. Heitkamp virtually isolated politically – and vulnerable to entreaties from the Trump camp.
Already the lobbying has begun, in some cases with genuine fury, the targets being those 10 Democratic lawmakers from Trump territory, and the pressure coming especially heavily from supporters and opponents of abortion rights – an issue Mr. Trump hardly spoke about in the campaign and as President. One surprise focus of attention: Senator Robert Casey of Pennsylvania, a rare Democrat who opposes abortion rights.
To heighten the drama, the Trump team has selected Kelly Ayotte to shepherd the Gorsuch nomination through the senate. Ms. Ayotte, a former Republican senator from New Hampshire who was defeated for re-election only months ago, nonetheless is a popular figure in the chamber, especially among moderate Democrats who admired her hard work, diligence and openness. This fight will require all of those attributes, and perhaps more.
David Shribman is executive editor of the Pittsburgh Post-Gazette, and a Pulitzer Prize-winner for his coverage of U.S. politics.
David Shribman