USA TODAY International Edition
Like Garland, Gorsuch deserves a fair hearing
Donald Trump promised voters he’d nominate Supreme Court justices in the mold of the late Antonin Scalia and, with his choice of federal appeals Judge Neil Gorsuch, the new president delivered.
The Gorsuch pick, announced Tuesday in a prime- time event worthy of The Apprentice, thrills conservatives but sets off a titanic confrontation with Senate Democrats, who remain incensed over Republicans’ shameful refusal to even consider President Obama’s nominee for the same vacancy nearly a year ago.
The Republicans’ stonewalling of the eminently qualified appeals court Judge Merrick Garland was, if not unprecedented, extraordinarily rare in the nation’s 228- year history, giving credence to the charge that the nomination was “stolen” and handed to Obama’s successor.
The Republicans, who successfully gambled that they would win the White House and hold their Senate majority, were wrong to deny Garland even a hearing. Democrats would also be wrong to adopt scorced- earth tactics against Gorsuch, who sits on a court in Denver that covers six Western states.
The most lasting damage from incessant political warfare is to the Supreme Court’s reputation, which after years of bruising ideological battles over nominees is seen more as another partisan branch of government than as the independent arbiter of the nation’s laws it was meant to be under the Constitution.
Gorsuch, 49, is a conservative legal thinker with a decade- long record of appellate rulings. Like Scalia, he’s an “originalist” who believes that judges should enforce the Constitution as the nation’s framers intended at the time it was written, not as interpreted in the modern age.
While Gorsuch hasn’t ruled directly on abortion, he hinted at his legal thinking in an opinion on the religious rights of businesses to refuse to provide free contraceptives under the Affordable Care Act. The law, he wrote, requires firms to “underwrite payments for drugs and devices that can have the effect of destroying a fertilized human egg.”
In naming Gorsuch, Trump fulfilled the hopes of evangelical voters who were willing to overlook his un- Christian behavior in the hope he would appoint conservative, anti- abortion justices. Trump vowed during the final presidential debate that if he gets to choose a justice, overturning Roe v. Wade “will happen automatically.”
Actually, it won’t. For all the angst over this nomination, Gorsuch would return the court to the ideological balance that existed when Scalia was alive — four conservatives, four liberals and frequent swing- vote Anthony Kennedy. It would not threaten the law of the land on abortion.
But if any of the court’s three eldest members — Kennedy, 80, and liberals Stephen Breyer, 78, and Ruth Bader Ginsburg, 83 — retires or dies, it will give Trump the opportunity to dramatically shift the court to the right for decades to come.
That fight is for the future. For now, like all nominees, Gorsuch deserves a fair hearing to determine whether he falls within the broad judicial mainstream and has a healthy respect for legal precedent.