Democrats Should Have Asked Judge Gorsuch Only One Question

03/23/2017 11:18 am ET Updated Mar 26, 2017
Joshua Roberts / Reuters

[Senator Charles] Schumer said Republicans should slow down the proceedings, given that the F.B.I. has confirmed that the campaign of President Trump is under investigation for possible connections to Russian interference in the 2016 election... Senator Charles E. Grassley, the Iowa Republican and committee chairman managing the hearing, scoffed at that notion as ridiculous. “As long as he is in office, he can exercise his constitutional power,” Mr. Grassley said, referring to Mr. Trump. ― New York Times [Emphasis added]

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As confirmation hearings proceed for Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, Senate Democrats are pursuing a strategy of questioning Judge Gorsuch on his record of siding with powerful interests against ordinary citizens. For a normal nominee, chosen by a normal President in times of normal Congressional procedure, such questions would be relevant in assessing a candidate’s qualifications to sit on the nation’s highest court. As things stand, however, there is only one question that every Democrat in the Senate should be asking the nominee:

“Judge Gorsuch, what is your opinion of the legality and propriety of the Senate Republicans’ refusal to give Merrick Garland, President Obama’s nominee for the Supreme Court, a hearing?”

This approach may seem like petty revanchism, the irrational obstruction of an apparently highly qualified (if extremely conservative) justice who is almost certain to be confirmed in any case. It is not. The question, and how Gorsuch might choose to answer it, is a matter of utmost urgency for our system of government.

The decision of Majority Leader Mitch McConnell and the Senate Republicans not to hear President Obama’s nominee was a deliberate, partisan attack on our Constitution, which plainly lays out the Senate’s privilege and duty to offer “advice and consent” on Supreme Court nominations. Senator McConnell and all the other Republican Senators swore an oath to uphold the Constitution.

There is no doubt that Senator McConnell and the Senate Republicans who stood with him betrayed their oath. This was not merely obstructionism. If McConnell and his colleagues had wanted to keep Judge Garland off the Supreme Court (despite the fact that he is an eminently qualified, apolitical judge, one who has always interpreted rather than made law, precisely the kind of Supreme Court Justice the Republicans insist that they want) they could have blocked him in committee or on the Senate floor. They had the votes. But they didn’t want that; they wanted to proclaim, in principle, that President Obama, with eleven months left on his term, had no right to nominate a Supreme Court justice.

The implication was that President Obama was not really the President; that he was a usurper of the State. This delegitimization was part of a cynical, multifaceted, and extremely destructive Republican strategy that began immediately after Mr. Obama was elected in 2008. The Republicans felt so entitled to power that their leadership met on the night of his inauguration and vowed to oppose him on everything he proposed, regardless of the merits, as a political strategy. As Norman Ornstein of the reactionary American Enterprise Institute put it, “[They] figured out that the way to handle all of this was to unite like a parliamentary minority … make the [president’s] victories look messy and illegitimate, have a lot of defeats.” Supposedly respectable Republicans were given license to paint the President as an America-hating radical, bent on dictatorial rule. Extremist surrogates, whose ravings were encouraged by mainstream Republicans with a wink and a nudge, attacked him as a Kenyan Muslim communist racist black nationalist. The establishment party colluded with marginal conspiracy theorists such as Alex Jones to gain public acceptance of a fake political narrative; to actually drag down and destroy the very concept of objective truth. They must have known how dangerous this was for democracy. In their sheer lust for power, they didn’t care.

If the President were an enemy of America, then Republicans could claim that they were justified in blocking him by any means necessary, up to and including not even hearing his Supreme Court nominee.

But President Obama was none of these things; not a Kenyan, not a communist, not a dictator, not a jihadi, and the Republicans knew it. The shameful fact was that they were willing to blow up a fundamental aspect of the relationship between the Judicial and Legislative branches of our government, and to deny the authority of the Executive, simply because they disagreed with the President’s policies. In the United States as we have always understood it, the means by which legislators attempt to limit or overturn Presidential policies that they don’t like has been legislation. It has not been, and should never be, opportunistically undermining the design of the Constitution.

The Democrats – and those Republicans who care about democracy, law, and truth – should not accept Senator McConnell’s hypocritical desire to “bring[…] our country together after a difficult election,” nor should they allow his completely ahistorical, revisionist reference to a grossly and intentionally misconstrued so-called “Biden rule” to pass without challenge.

The issue here is much bigger than a judge, bigger than a swing vote on the Supreme Court. In denying even a hearing to Merrick Garland, the Republicans attacked not the President, but the democratic political process itself.

In the event, Senator Patrick Leahy did ask Gorsuch for his opinion on the Republican treatment of Judge Garland (and, by inference, of President Obama and his presidential prerogatives.) Gorsuch replied that Judge Garland “is an outstanding judge… I can’t get involved in politics. There’s judicial canons that prevent me from doing that. And I think it would be very imprudent of judges to start commenting on political disputes.”

Even, apparently, when those “political disputes” threaten the very framework of the system that the judge has sworn an oath to work within. The most charitable interpretation of this answer is that Judge Gorsuch doesn’t understand the clear and present danger to our system of government, and the least charitable interpretation is that he doesn’t care about this danger. Either way, the man is not fit to serve the institutions of a democracy. No other question should be asked.

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