I share the widespread anger (expressed by Sen. Elizabeth Warren, D-Mass., and most other Democratic senators) at the treatment that President Obama’s superbly qualified nominee to the Supreme Court received from the Republican-controlled Senate last year.
Republicans claim to be the party of “strict constitutional construction” but they flouted their clear responsibility by not even having hearings on Judge Merrick Garland. James Madison and the other Founders would have been appalled by the argument that a president could not make an appointment in the last year of his term. The Constitution says no such thing. In fact, our greatest chief justice, John Marshall, was nominated in the final weeks of John Adams’ term, which was after he had already lost to Jefferson. Nor would the Founders have wanted a public referendum on a president’s choice: They feared irrational popular will, and that is why they gave the power of “consent” to the Senate, which until 1913 was not popularly elected.
But now the Democrats in the Senate must decide whether to block the nomination of Judge Neil Gorsuch to the court. This would be a major error. He is eminently well qualified and has received the highest evaluation from the American Bar Association. Moreover, a filibuster would probably be defeated by the “nuclear option,” where Republicans alone will confirm him.
Consequently, any semblance of bipartisanship in naming Supreme Court justices would be lost forever. This would further politicize the Supreme Court, whereas in the past such choices almost always had bipartisan support.
As recently as 1994, qualified nominees like Gorsuch received overwhelming support in the Senate. Anthony Kennedy was confirmed 97-0; Ruth Bader Ginsburg, 96-3; and Stephen Breyer, 87-9. More recent nominees have not had that degree of near unanimity, but even Sonia Sotomayor, nominated by President Obama, was confirmed 68-31.
As a committed Democrat since college, who has campaigned for both Warren and Obama, I fear that a filibuster of Gorsuch can do lasting damage to the Supreme Court, to the Senate, and perhaps to the rule of law itself. Courts have no power to enforce their decisions: Popular acceptance is essential, and if judges are seen as mere politicians in robes, it is possible that groups will disregard court rulings, resort to “self-help,” and wait for the next election where they hope to prevail.
Gorsuch would not have been my choice for the court – I voted for Hillary Clinton – but he is eminently qualified and would be a better justice than Antonin Scalia. Gorsuch is careful and fair-minded, and he avoids the self-important bombast that characterized much of Scalia’s writing and speeches.
Yes, he is conservative, but no alternative nominee is likely to be any less so. Yes, he leans toward businesses and does not seem to have empathy toward those less fortunate. Yes, he seems to be a natural law admirer and would give greater scope to religion in the public sphere and to protecting life. He would also give less deference to the rulings of administrative agencies – but that might be a very good thing in the Trump administration!
My review of his writings and decisions convinces me that he is not nearly as doctrinaire as Scalia (or Clarence Thomas) and that his respect for precedent will probably make him a supporter of gay rights, affirmative action in higher education and the right of a woman to control her body. These rights have recently been reinforced by the court in opinions supported by Anthony Kennedy, for whom Gorsuch clerked. I would be surprised if he tried to undo these precedents.
Finally, he would be a great improvement over Scalia, who voted to end Miranda warnings, favored the death penalty even for minors and the intellectually disabled, said the Constitution gave no rights to women, was totally opposed to gay rights and did not believe in evolution.
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