Preserve filibuster, and give Gorsuch his vote

This appeared in Thursday's Washington Post.

Senate Majority Leader Mitch McConnell, R- Ky., chastised Democrats on Tuesday for threatening to block Judge Neil Gorsuch's nomination to the Supreme Court." If Judge Gorsuch can't achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?"

Well, that is rich. Democrats said the same sorts of things about Merrick Garland, the judge President Barack Obama nominated more than a year ago, whom McConnell blocked in a cynical power play. In fact, Democrats had more reason to complain: More than Mr. Gorsuch, whom conservative activist groups handpicked, the moderate Garland was a consensus nominee. Of all the people to take Democrats to task, McConnell has the least standing.

Nevertheless, the national interest requires that Democrats judge Gorsuch "on the merits," as Sen. Richard Durbin, D-Ill., said at this week's confirmation hearings. Those merits include top-flight academic credentials, a decade on the federal appeals bench, a "well-qualified" rating from the American Bar Association and the support of some key Obama administration legal officials. In his hearings, Gorsuch defended judicial independence, went as far as he could in criticizing President Donald Trump's bullying of federal judges, and expressed reverence for legal precedent.

Gorsuch’s answers were far from perfect. He was overcautious in discussing his legal thinking during his hearings. He said less than previous nominees on long-established precedents, raising questions about why. Though he defended the "originalist" approach, holding that the law should be read as it was understood when written, he said too little about what happens when the original meaning was in dispute at the time or is debatable now. Despite its adherents' pretensions, originalism often provides inadequate guidance, and some originalists have used the approach as pretext to embrace conclusions at least as arbitrary and ideological as those they criticize. Moreover, though he would deny he sent any such message, Gorsuch's past writing signaled skepti- cism of some important existing precedent.

We are likely to disagree with Gorsuch on a variety of major legal questions. That is different from saying he is unfit to serve. He deserves the deference due any presidential nominee. Senate Democrats are nevertheless poised to demand that Gorsuch garner 60 votes for confirmation, rather than a simple majority, a stand they could seek to enforce by filibustering a motion to confirm the nominee.

The resulting standoff could end in three ways. First, a cloture vote could attract sufficient Democratic votes to reach the 60-vote threshold to stop a filibuster, which is unlikely. Second, McConnell could move to eliminate the filibuster on Supreme Court nominees, which would be deeply unwise and injure both parties in the long term. Third, the parties could strike a deal that would preserve the filibuster for the minority party in the case of future nominees while providing for an up-or-down vote on Gorsuch's confirmation. That, not deepening the politicization of the judiciary, is the best path forward.