It seems like there’s a lot of love going around this Valentine’s Day. And if Democratic Senator Dianne Feinstein’s exuberance is any indication, Judge Neil Gorsuch may be getting some of that love in his confirmation to the Supreme Court.
There is a lot to say about Gorsuch’s impeccable academic credentials at elite institutions, fantastic writing style, and sterling legal resume. Some liberals have noted that he is not as combative as Justice Scalia was—although perhaps the term bitingly-witty is more accurate.
His most important trait, however, is that he understands his job is to follow the law, not make policy decisions from the bench. His credentials are so impressive both Democrats and Republicans unanimously confirmed him to the tenth circuit court in 2006. Elsewhere, he has been described as the nominee that is “impossible to oppose.”
It seems Gorsuch would be a prime candidate for ABC’s The Bachelor in addition to the Supreme Court. So what’s the hold up?
If you want the short answer, people are upset because Merrick Garland, an almost equally impressive nominee, was put on stall last year.
Garland was nominated by President Obama to fill the late Justice Scalia’s seat. He was seen as a more moderate judge, but he would have been a reliably liberal vote.
This was a no-go replacement for Scalia, a conservative vote. So Mitch McConnell, the senate majority leader, decided to gamble. He resurrected an argument both democratic Sens. Chuck Schumer and Joe Biden previously made. The argument goes like this: A lame-duck president with Congress controlled by the opposition party should not expect to have a Supreme Court nominee confirmed in an election year. Since a Supreme Court seat carries influence that goes far beyond the election, the nomination should be left to a newly-elected President who has a mandate.
McConnell’s gamble was based on the idea that if Trump won, he would fill Scalia’s seat with an originalist/textualist. If Clinton had won, McConnell would have probably put Garland to a vote during the lame-duck session to avoid an assuredly more liberal nominee.
Today, some feel that the Democrats in the senate should treat Gorsuch the same way the Republicans treated Garland—with complete and total opposition.
Aside from the fact that this is impossible—as the Democrats don’t have the majority in the Senate— there are other problems.
Before I get to that, though, I’m not going to pretend that the Republican opposition to Garland didn’t have partisan motivations. I think it’s pretty obvious that McConnell would have tried to get a conservative nominee by a lame-duck Republican president confirmed. There’s plenty of hypocrisy to go around and I don’t think it’s worth rehashing the back and forth nonsense that plagues D.C..
But I think it’s important to distinguish between what is and isn’t controversial.
There is a real argument over whether a Supreme Court nominee of a lame-duck President should be confirmed in an election year. Leaders from both parties have made this case. The whole controversy centers around the concept of a mandate to govern. Any student of politics will tell you that a mandate is a somewhat illusory concept. It basically refers to the claim a government has to make decisions on behalf of the people. For example, President Obama had a mandate when he won his election, but lost it overtime as people rejected his party during the midterms. The same is true for President Bush in 2008.
But what isn’t controversial, and never has been, is whether a newly-elected President whose party controls Congress should have his mainstream and qualified nominee confirmed. That is a given. A President’s claim to a mandate is most credible right after an election, which is why Neil Gorsuch is so confirmable.
If that isn’t convincing, consider Tom Brokaw’s observation. Brokaw notes that the Democratic party should save its fire for a later seat. Confirming Gorsuch merely restores the balance of the court to when Scalia was alive. If Democrats filibuster now, McConnell would look more justified in employing the nuclear option. If they save their filibuster power for later, it will be much easier for them to defend their stance and demand a moderate nominee.
One final point is that Gorsuch would be a check on federal power (a concept which has been regaining popularity among some outlets since the election). So far he has shown no indication that he would be a rubber stamp for President Trump.
If you vehemently disagree with Trump and have joined arms with la resistance, this is probably a good thing for you. As Jennifer N. Victor puts it for Vox, it is important for those opposed to Trump to distinguish between “democracy-threatening action” and just normal republicanism. Surely Neil Gorsuch’s judicial record is in the purview of mainstream conservative thought and would serve the non-partisan end of restraining federal overreach.
So far, the political environment this year has been chillingly divisive. Confirming Neil Gorsuch is a no-brainer and would spare Americans from a useless partisan fight.
Both Democrats and Republicans shouldn’t play it coy. They should be bold, take their chances, and give Gorsuch a swift confirmation.