One way or another, confirm Judge Gorsuch
Judge Neil Gorsuch, a thoughtful conservative who is President Donald Trump’s nominee for the Supreme Court, likely wins Senate confirmation this week. The question is under what terms: conventional or nuclear? With American democracy unscathed or, um, scathed?
Our hope, now fading, is that Gorsuch gets to the high court the old-fashioned way — confirmed with the support of at least 60 senators, including several Democrats. There’s something assuring, not to mention refreshingly constitutional, about senators from both sides of the aisle coming together to fulfill their responsibility to provide “advice and consent” on judicial nominations. Since Gorsuch, who’s been on the federal bench for a decade, clearly is qualified, he should be confirmed — by Republicans and Democrats.
If only. In Washington, Republicans and Democrats will go to extremes to win their battles and damage the other side, even if that means attacking the ideal of compromise that should define effective bipartisan governance. The Gorsuch nomination is a crucial test for the Senate because there’s more at stake than a vote on an individual Supreme Court seat. There is also the preservation of an honorable system for doing the people’s business. The Senate stands at the brink of abandoning this important democratic practice of reasonable cooperation on judgeships.
Here’s why: When the full Senate votes on confirmation, Gorsuch appears set to receive all 52 Republican votes, but his nomination has no direct path to a super-majority of 60 because there are not eight Democratic and independent senators willing to join. That fact became clear Monday when the Senate Judiciary Committee approved Gorsuch’s nomination on a party-line vote but the 41st Democrat came out against the nominee. By Tuesday, that figure was up to 44.
Without 60 votes for confirmation, Democrats can filibuster, effectively icing the Gorsuch nomination — unless Republicans invoke the extreme measure of changing Senate rules governing Supreme Court confirmations. Under this so-called nuclear option, Senate Majority Leader Mitch McConnell could push through a straight majority vote to deliver the high court seat to Gorsuch. That’s probably what he’ll do.
They don’t call this the “nuclear option” for nothing, though. The Senate has never experienced a partisan filibuster to block a Supreme Court justice, so there’s never been a case of a majority party blowing up Senate rules to circumvent minority party opposition to a high court appointment. Supreme Court nominations have been withdrawn, and the 1987 nomination of Judge Robert Bork was defeated, but when the vote’s up for grabs, the Senate has found a way to do the responsible thing.
This sorry confrontation over Gorsuch has direct roots in a 2013 action by Senate Democrats. Then-Majority Leader Harry Reid deployed the nuclear option to crush Republican dissent over some presidential nominations. President Barack Obama endorsed Reid’s move, blaming Republican obstructionism that “just isn’t normal.” Funny how hyper-partisanship is starting to look more normal every day.
Democrats say Gorsuch doesn’t deserve the Supreme Court seat because they believe he’ll allow his political convictions to color rulings from the bench. He gave a strong defense of his judicial philosophy and commitment to the Constitution, but of course declined to discuss specific cases to avoid accusations of being prejudicial. Democrats characterized his caution as evasiveness. The Democrats weren’t ever going to go easy on Gorsuch, though, and much of that blame sits with Republicans. Last year they refused to even hold a nomination hearing for Judge Merrick Garland, Obama’s choice to succeed Scalia.
This time it’s a Republican president whose legitimate pick for the Supreme Court is hung up by Democratic rancor. If the only option is nuclear, the Republicans will take it. And you can bet Democrats won’t forget. That’s how we got here: revenge instead of compromise, destruction over cooperation, an escalating cycle of win-at-all-costs cynicism.
Senators, all of you know that Gorsuch will be a good justice. He deserves to be confirmed — and likely will be. If you also quash the filibuster, that’s on you.