On the merits, Gorsuch merits confirmation
One way or another, Senate Majority Leader Mitch McConnell reiterated Sunday, Neil Gorsuch will be confirmed this week to a lifetime appointment on the Supreme Court.
Democrats have good reason to be outraged by the Republicans’ rush to confirm President Trump’s nominee. The vacancy left by Justice Antonin Scalia’s death in February 2016, nearly nine months before the election, was rightfully President Obama’s to fill, and Obama nominated a judge — Merrick Garland — with sterling credentials and moderate views.
Yet the Republican-controlled Senate let the Garland nomination die after 293 days, without a vote or even a hearing. No wonder many Democrats are thirsting for payback.
The fact is, however, that elections have consequences, and McConnell’s cynical gambit paid off. Trump won. Republicans held the Senate. Even if Democrats filibuster, McConnell is prepared to change Senate rules and leave the Democrats unable to block Gorsuch, who deserves to be evaluated on his own merits.
By traditional measures, Gorsuch is a reasonable heir to the seat held by Scalia, an iconic “originalist” who interpreted the Constitution’s words in the way they were understood by the Founders. Importantly, Gorsuch’s confirmation would leave the ideological balance on the court roughly where it was before Scalia’s death.
Gorsuch’s academic and legal credentials are impeccable: Columbia, Harvard, Oxford, federal and Supreme Court clerkships and a decade on the federal appeals bench. He received a “wellqualified” rating, the highest available, from the American Bar Association. On principles and independence, he has gotten an array of glowing references, including from some Democrats and liberals. Extensive vetting has unearthed no hint of scandal.
As for his judicial philosophy, the 49-year-old judge from Colorado would not be on our short list for the high court. While in the broad judicial mainstream, he veers too close to the right bank for our taste, particularly on issues involving discrimination, government protection of the powerless and, presumably, reproductive rights. But he is not fire-breathing extremist.
The question of Gorsuch’s respect for legal precedent is somewhat murkier. Even more than past nominees, he wiggled away at his confirmation hearings from questions about whether previous landmark cases were rightly decided. It was a struggle to get him to say anything substantive even about rulings going back decades, though he did allow that
Brown v. Board of Education, the 1954 decision striking down public school segregation, was “one of the shining moments in constitutional history.”
Gorsuch’s record on the bench suggests that, on some key issues, he might well show the independence the nation needs at this moment in its history. In particular, the nominee’s suspicions about courts giving too much deference to executive branch power could lead him to rule against a president who seeks to exceed his authority. At his hearings, Gorsuch declared as strongly as he could his independence from the man who nominated him.
Overall, Gorsuch is about the best choice the country can expect from this president; in fact, the nomination was one of the least objectionable things Trump has done since taking office.