Why we can’t back Gorsuch
Adecade ago, The Times urged the Senate to confirm John Roberts to the U.S. Supreme Court even though he was a conservative judge nominated by a conservative president and was likely to pull the court to the right for decades to come. We backed him, despite our disagreements with his judicial philosophy, because we believe that presidents — Democrats and Republicans alike — are entitled to significant deference when they nominate justices to the high court, so long as the nominees are well qualified and scandal-free, respect precedent and fall within the broad mainstream of judicial thinking.
Under normal circumstances, that same reasoning would lead us to support the nomination of Judge Neil Gorsuch. Like Roberts, he is conservative but competent, with more than a decade of experience on the appellate bench and a “well qualified” rating from the American Bar Assn. But these are not normal times. Not after the outrageous obstruction of Judge Merrick Garland’s nomination for 10 full months by Senate Republicans. That debacle began in March 2016, when President Obama nominated Garland, a moderate and well-respected appeals court judge, to fill the seat on the court that had become vacant with the death of Justice Antonin Scalia. Instead of doing what the Constitution requires and offering their advice and, if merited, their consent, Senate Republicans refused even to engage in the process. They denied Garland a confirmation hearing and in some cases wouldn’t even meet with him — on the ludicrous pretext that a president in his final year of office shouldn’t be allowed to name a new justice because … well, it was never really clear what the supposed principle was behind this self-serving position.
They stonewalled the nomination until Obama was safely out of office and a Republican had been elected. Now, with Gorsuch subbed in for Garland, their cynical and dishonorable strategy is about to deliver its rewards.
Some people think it’s hyperbolic to suggest that the seat was “stolen.” But how else to describe it? Republicans took the opportunity to fill the vacancy away from Barack Obama without justification and delivered it up instead to Donald Trump. Gorsuch could now tilt the balance on the increasingly polarized Supreme Court for the next 30 or more years, influencing rulings on free speech, gay and transgender rights, campaign finance, abortion, and gun laws, among other subjects. He may not be outside the mainstream of judicial thinking, but he is a textualist, an originalist and a likely ally of the court’s conservative justices.
The Republicans’ underhanded ploy to subvert the Garland nomination has put the Democrats in an untenable position. They can now do what would ordinarily be the right thing to do — by going high after the Republicans went low. They could grumble a bit but then decline to filibuster, or they could even vote in favor of Gorsuch — effectively capitulating in the quixotic hope that an act of good faith would encourage the GOP to behave more honorably in the future.
Alternately, they can go down kicking and screaming. We say “go down” because no matter how hard they kick or how loud they scream, they seem unlikely to win this battle. The reality is that without filibustering, they don’t have the votes to defeat Gorsuch. And if they do mount a filibuster, Senate Republicans can vote to do away with the filibuster for Supreme Court nominees entirely. Under either scenario, Gorsuch gets the job.
To be clear, Democrats and Republicans share the blame for the long roll down the slippery slope of polarization and dysfunction in the judicial selection process. (Some Democrats have even suggested in the past that presidents shouldn’t fill Supreme Court seats in election years.) And as the process has become more politicized, the court has become more ideologically riven as well. Although there are differences between Roberts and Justice Samuel Alito, for example, on some important 1st Amendment issues, it’s also true that in recent years, justices appointed by Democratic presidents have tended to vote for “liberal” outcomes and justices appointed by Republicans for “conservative” outcomes. That is a bad trend.
The judicial system works best when justices are neither rigidly ideological nor biased along partisan lines. To get there, we need a less highly politicized selection process, along with a measure of cooperation, compromise and civility in Congress.
For the moment, though, it is imperative to stay focused on what the GOP did. By all means, let’s hear a cri de coeur from the Democrats, even if it is in vain. The Republicans took partisan obstructionism to an extraordinary new level, and that must not be ignored as if it never happened. President Obama’s nominee was robbed of his right to a hearing, and Senate Democrats have no obligation to be complicit in the theft.