The Neil Gorsuch confirmation hearings opened yesterday with hours of opening statements by senators that, depending on your interpretation, either foretold a week of tough questioning for the candidate or signaled a Democratic Party in disarray without a unified plan of how to deal with him.
I’ll tell you how to deal with him, and it’s easy:
Don’t.
Go ahead: ask him all of the questions you want. Find out what his agendas are, to the extent that he will tell you, since SCOTUS nominees are notoriously tightlipped about anything remotely significant during their confirmation hearings. Ask him about his independence from Trump. Ask him about women’s issues, a topic highlighted this weekend with the notorious letter from one of his former law students. Ask him about his rulings that would overturn years of settled jurisprudence allowing federal agencies to interpret their own rules. Ask him about Citizens United. Ask whatever you want.
And then, if you are a patriotic citizen of this country, filibuster his nomination.
I am not suggesting that Neil Gorsuch is not qualified to be on the Supreme Court; by all accounts he is. However, there are at least two excellent reasons to table this nomination at this time:
First of all, this is a nomination that never should have existed, and we all know that. It is the result of what will in all likelihood be seen by historians as one of the most cynical exercises of partisan politics in American history: the hijacking of a Supreme Court nomination by the Republican Senate under Mitch McConnell from Barack Obama. After President Obama selected a highly qualified, GOP-friendly candidate in Merrick Garland, McConnell orchestrated an unprecedented denial of service: a refusal to hold hearings or even meet with the nominee, with no legitimate reason, eventually acknowledging that what he wanted was to roll the dice and hope Trump won the election and could appoint someone more right wing. An action this brazen should not be rewarded, and if it is, it will taint the Supreme Court forever. It will no longer be the impartial arbiter of the law; it will merely be another partisan branch of the government, subject to the whims of the electorate.
Gorsuch may be a perfectly decent man and an excellent judge, whether I agree with his rulings or not, but there simply should not have been an opening for him at this time. The odds are that this President will have at least one or two more opportunities to nominate him, and that is when he should be considered. Not now.
The second reason is more complex and yet, I suppose, at the same time it is just as fundamental to the Constitution and to who we are as a people and a nation. The Constitution gives the President of the United States the power to nominate Supreme Court justices. Right now, that office is held by Donald J. Trump. But there are legitimate and serious questions about how he got there, and those questions are now under investigations by the FBI and other intelligence agencies. Soon, it seems likely, there will be reason to appoint a Special Prosecutor. And if, as does not appear unlikely, we discover that Donald Trump made his way into the White House by procuring the assistance of a foreign government—not just any foreign government, but our long time enemy, Russia—well, then we have a conundrum: a President whose very election was an act of treason.
Suddenly we are thrown into a Constitutional crisis. We can impeach Trump, yes. But that makes Mike Pence, his Vice President—a man who is only in that office because of Trump’s treason—the President. Do we run the entire election over? How exactly do we handle something like that? The Founding Fathers didn’t give us guidelines for it; we’d be in wholly new territory. But one way or the other, one thing is absolutely clear: if Donald J. Trump is only President of the United States due to collusion with Russia, he should NOT have the ability to appoint someone to the Supreme Court and thus affect an entire generation of American lives.
Therefore: for either of these reasons or both of these reasons, filibuster this nominee if you love your country, senators. If you do it for the second reason and Trump is found innocent of the charges being levied against him, you can always revisit Gorsuch later. But you can’t undo the appointment once you confirm it. Stop it now, in its tracks. It’s your patriotic duty.