We start with the premise that what Senate Republicans did last year to Merrick Garland, the chief judge of the D.C. Circuit Court of Appeals and a jurist of high repute, was unprecedented and deplorable. Refusing to even allow confirmation hearings to move forward on his lawful appointment by President Barack Obama to the U.S. Supreme Court was shameful.
This violation of protocol not only threw gasoline on already incendiary Beltway relations, it left the nation’s highest court without a full panel, resulting in a number of 4-4 decisions that left cases without clear resolution on constitutional concerns. Never in the 225-year history of his country has the Senate neglected for so long its constitutional obligation to provide advice and consent on a presidential pick for the highest court in the land.
As a result, there’s no avoiding the fact that whatever comes of President Donald Trump’s nomination of federal appeals court Judge Neil M. Gorsuch to fill the nearly year-long vacancy on the Supreme Court will carry the stain of those shady tactics. For that reason, the temptation is understandably high for Senate Democrats to respond with a commensurate level of obstruction to Trump’s nominee. But we encourage them to resist.
First, if Senate Democrats seek to block Gorsuch’s nomination, Republicans are likely to respond by invoking “the nuclear option,” meaning using its slim majority to change the rules, abandoning the 60-vote threshold for Supreme Court nominees. Such a move, as its popular name implies, would indeed be the final step of all scorched-earth tactics, assuring no end to acrimony and stagnation in Washington.
Second, while there are legitimate concerns that Gorsuch’s placement on the court could be a setback to efforts to strengthen gun control laws, increase health care access and protect Roe v. Wade, Trump could have done worse. A graduate of Columbia University and Harvard Law School, Gorsuch attended Oxford as a Marshall Scholar and served Supreme Court clerkships under both Anthony Kennedy and Antonin Scalia, whom he would be succeeding. In addition, he has offered opinions on a spectrum of cases at the appellate court level. His credentials are beyond reproach, which helps explain why he was confirmed unanimously for his current post. Yes, he takes a narrow, conservative view in how he interprets the Constitution, but he is thoughtful and his background suggests he will be no more of a conservative on the court than Scalia was.
That is to say, Democrats would do well to save their powder for the next battle, if there is one. Should another vacancy come up over the next four years, the stakes would indeed be higher as that individual would have the potential to cause a real shift on the court, most likely to the right.
Senate Democrats have the option of demonstrating their displeasure at the mendacity shown Obama’s appointment last year by abstaining when it comes to a final vote on Gorsuch. But Gorsuch deserves the very thing that Republicans denied Garland — a hearing and a confirmation vote.
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