In what may be the first positive act of his presidency, Donald Trump recently nominated Judge Neil Gorsuch to the Supreme Court. As the nomination moves forward, two things can be said with virtual certainty. First, barring a shocking revelation during the confirmation process, Gorsuch will be confirmed. Second, the confirmation process itself will be a largely substance-free exercise in political demagoguery having little relevance to his qualifications for the Court.
Judge Gorsuch appears exceptionally well suited for the Supreme Court in terms of his background, intellect and character. The Senate confirmed his nomination to the Tenth Circuit Court of Appeals with no opposition. While quite conservative, Gorsuch is well within the legal “mainstream.” He is seen by many as the second coming of the Justice he would replace, Antonin Scalia. However, he differs from Scalia in at least two significant respects. First, he has a much better judicial temperament. In this regard, he is closer to Chief Justice Roberts than Scalia. Second, he is more skeptical of extreme judicial deference to executive branch legal interpretations. This quality should be reassuring in the Trump era, particularly to Democrats who have suddenly discovered following the heady Obama years that untrammeled presidential discretion may not be such a good thing after all.
Three Possible Roads to Confirmation
Republicans are united in support of this outstanding nominee and they control the confirmation process. Therefore, the question is not whether Gorsuch will be confirmed but how. The how part depends on the Democrats. They could return to the pre-2000 bipartisan high road, they could follow the lower road of more recent times, or they could descend even further into the depths of partisanship.
The high road. Confirmation of a nominee with Gorsuch’s credentials would have been a slam-dunk in the far less politically polarized world that existed not too long ago. Until fairly recently, Senate confirmations followed the bipartisan principle that presidents should be accorded reasonable deference with respect to their Supreme Court and other judicial nominations provided that the nominees were substantively well qualified, ethically fit, and not too extreme in their judicial philosophy. With the notable exception of the Bork and Thomas debacles, this principle generally held up through the Clinton Administration. In recent decades, large bipartisan majorities confirmed Justices as ideologically diverse as Scalia (98-0), Kennedy (97-0), Souter (90-9), Ginsburg (96-3), and Breyer (87-9).
The lower road. Broad bipartisan support for well qualified nominees eroded during the George W. Bush and Obama Administrations. A number of Senators now found it acceptable to vote against highly credentialed nominees of impeccable character based solely on politics—i.e., opposition to the outcomes the nominees were deemed likely to reach in controversial cases. Four Justices were confirmed during this period but with substantial partisan opposition: Chief Justice John Roberts (78-22) as well as Associate Justices Alito (58-42), Sotomayor (68-31), and Kagan (63-37). Alito was confirmed after a failed filibuster attempt by a group of Democratic Senators that included Barack Obama, Joe Biden, Hillary Clinton, and Chuck Schumer. (After the Scalia vacancy arose, then-President Obama said he had come to regret his effort to filibuster Alito.) Politicization of the judiciary also spread to nominees for the lower federal courts during the George W. Bush and Obama years.
The even lower road. The opportunity certainly exists to continue the downward spiral in politicizing the federal judiciary. Senate Majority Leader Mitch McConnell set a new low with his transparently partisan refusal to consider Obama’s nomination of Judge Merrick Garland to fill the Scalia vacancy. Some Democrats now are responding in kind, threatening to mount a filibuster against Gorsuch or any other Republican Supreme Court nominee for only the second time in modern history. In effect, such an effort would signal their willingness, as Minority Leader Schumer has hinted, to keep the Supreme Court seat open for at least four years.
Key Arguments to Expect in the Confirmation Process
Substantive merits. Given Judge Gorsuch’s outstanding qualifications and barring the (unlikely) discovery of some major ethical or character flaw, it will be very hard for Democrats to credibly attack Judge Gorsuch on his merits. Nevertheless, attack they will. Some will portray Gorsuch as an inhumane extremist who is hostile to women, minorities, the environment, and most everything else that Americans hold dear. The usually sensible Senator Wyden offered a preview of this line of attack with his breathtakingly hyperbolic and ridiculous description of the Gorsuch nomination as “a breathtaking retreat from the notion that Americans have a fundamental right to Constitutional liberties.” Hardly anyone will take such statements seriously, including the Senators who make them. They are just another way of saying that Gorsuch, as a conservative judge, can’t be counted on to reach political outcomes favored by liberals in cases where a straightforward application of the law does not support them.
Independence. Another line of attack on Gorsuch is now emerging, spearheaded by Schumer and outlined in his recent New York Times op-ed. Schumer attempts to tar Gorsuch with President Trump’s ludicrous criticisms of the judiciary. He asserts that Trump’s asinine comments have somehow raised the bar for Gorsuch’s confirmation and placed a high burden on him to “demonstrate” his independence. There is nothing in Gorsuch’s background to raise the slightest issue regarding his judicial independence or integrity. However, Schumer insists that Gorsuch can meet his burden only by answering a series of questions about specific issues involving past and potential future Supreme Court cases—e.g., has Trump abused his power, would a “Muslim ban” be constitutional, was Citizens United correctly decided, how does the Constitution’s “Emoluments Clause” apply? This line of attack is wholly disingenuous. As Schumer well knows, no responsible nominee would answer questions like these in a confirmation hearing and thereby prejudice his or her future consideration of them as a Justice. Indeed, to answer such questions for a body of politicians considering one’s nomination would clearly demonstrate a fundamental lack of judicial independence. Notably, Justice Ginsburg refused to respond to such questions at her confirmation hearing in 1993. Her stance became known as “the Ginsburg rule” and has been followed by every subsequent Supreme Court nominee.
The stolen seat. Given the weakness of the above lines of attack, the main assault against Gorsuch’s confirmation may come in the form of the “stolen seat” argument. The argument here is that the vacant seat created by Scalia’s death rightfully belongs to the Democrats, and specifically Judge Garland, but was “stolen” from them when McConnell refused to grant Garland a confirmation hearing. One early proponent of this argument, Senator Merkley, announced before Gorsuch was nominated that he would filibuster any Trump nominee who was not Garland. The stolen seat argument has two advantages. First, it sidesteps the problem of Gorsuch’s obvious qualifications since it applies as a matter of “principle” regardless of who the non-Garland nominee is. Second, McConnell’s refusal to allow Garland a hearing was indeed a travesty.
This argument, however, also has its downsides. For one thing, at most only a confirmation hearing, not the “seat” itself, was “stolen” from the Democrats. The contention before the election was that Garland was entitled at least to a hearing and maybe a floor vote, not that he had any right to be confirmed. For another thing, it is clear from the Democrats’ own words that, had the situation been reversed, a Democratic-controlled Senate would likewise have refused to confirm a Republican President’s nominee to the Supreme Court in the final year of his term—although they might have acted with more subtlety than McConnell. The Democrats’ only genuine chagrin over McConnell’s gambit is not what he did but that, to the surprise of almost everyone, it actually worked. More broadly, both parties have politicized the judicial appointment process to such an extent and engaged in so much hypocrisy that they have exhausted the outrage factor and forfeited any credibility in trying to play the hypocrite card against each other. Perhaps this is why Democratic efforts to make the Garland stall a major issue in the presidential campaign apparently did not resonate with the cynical electorate.
Which Road Will Democrats Take?
Based on what’s been said already, it is clear beyond a shadow of a doubt that Gorsuch’s confirmation will not take the high road of honest, substantive consideration and debate on his merits. Sadly, the Supreme Court confirmation process remains mired in a swamp of mutual demagoguery where virtually nothing said or done by either party has much substantive credence and everything depends instead on political calculus. However, the political calculus in this case remains uncertain. Surely Democrats will continue to insist, misleadingly, that there is a 60-vote “standard” for confirmation of Supreme Court nominees. But will they supply enough votes to get Gorsuch to 60 for confirmation (or at least to end a filibuster attempt) or will they go full-throttle to filibuster the nomination?
Some political factors support giving Gorsuch the eight Democratic votes he needs to reach 60. Democratic Senators facing challenging 2018 reelection bids in red States may be inclined to support him. (As of now, nine Democratic Senators reportedly are prepared at least to vote against a filibuster.) More fundamentally, if Democrats withhold the necessary votes and take the filibuster road Republicans will almost surely invoke the so-called “nuclear option”. This will enable them to confirm Gorsuch, and any future Supreme Court nominees, by a simple majority vote. The key consideration here is future nominees. Gorsuch’s confirmation, unappealing as it may be to Democratic partisans, will only restore the ideological balance that prevailed on the Court before Scalia’s death. However, the Court’s ideological balance could experience a potential seismic shift in the fairly likely event that Republicans get another vacancy to fill during the next four years. Democrats might be wise to save their maximum resistance for the next time when the stakes are much higher. On the other hand, the political pressure on Democratic Senators to go all-in now against Gorsuch may be too intense to resist. The Democratic base remains apoplectic over Trump and in full “resistance” mode. Likewise, prominent leftist pundits such as E. J. Dionne, Kurt Eichenwald, and Eugene Robinson, are urging Democrats to oppose Gorsuch to the max, win or lose, as a form of revenge for Garland, as a means of playing to the Democratic base, or perhaps as a feel-good emotional outlet.
It remains to be seen how the politics will play out. As noted above, the only seemingly sure outcome is that Gorsuch will be confirmed at the end of the day. Ironically, the ugly political tactics on both sides that have come to define federal judicial appointments are now poised to produce a Justice who figures to be an outstanding addition to the Court by any objective measure. Harvard Law School professors across the ideological spectrum offer high praise for Gorsuch. Even liberal icon Lawrence Tribe describes him as “a brilliant, terrific guy who would do the court’s work with distinction.” Maybe this signals that there is still some hope for our democracy.