Democrats in the Senate should do whatever they can to block the confirmation of Neil Gorsuch to the Supreme Court. They will almost certainly lose this battle, but they should fight it anyway. To those who oppose Gorsuch on strictly ideological grounds, this may seem obvious. But it is more complicated than that.
Once upon a time the Supreme Court confirmation process was governed by a set of unwritten but nevertheless clearly understood rules. Most senators believed that elections mattered, and that therefore a president was entitled to select a nominee who was aligned with the president’s political and judicial philosophy so long as the nominee satisfied certain fundamental criteria.
First and foremost, the nominee had to be qualified from an academic and professional standpoint. Second, the nominee had to be acceptable in terms of demeanor and temperament. Judicial philosophy and political ideology were not generally viewed as deciding factors, so long as the candidate did not subscribe to fringe beliefs far outside the mainstream of judicial thought. If they did, or if people believed they did, they could get Borked.
But only Robert Bork got Borked. Otherwise, even in relatively recent times, the unwritten rules yielded results that seem surprising from today’s polarized vantage point. Justice Scalia, for instance, was confirmed by a vote of 98-0 in 1986, despite a clear understanding of his conservative judicial philosophy. On the opposite side of the political spectrum, Justice Ginsburg was confirmed by the near-unanimous tally of 96-3 in 1995. Other nominees firmly associated with conservative or liberal viewpoints, such as John Roberts and Sonia Sotomayor, were also confirmed with decisive majorities. Sotomayor, for instance, was confirmed by a greater than 2-to-1 margin as recently as 2009.
As admirable as those unwritten rules might have been, and as much as we might wish for their return, they were thrown out the window by Senate Republicans last year.
The Republicans’ refusal to even consider President Obama’s nomination of Merrick Garland changed the game. Their invocation of a non-existent “rule” or “precedent” against confirming Supreme Court nominations during the last year of a presidential term was nothing more than a fraudulent pretext.
There is, and never has been, such a rule. It is true that election year nominations have been somewhat infrequent in our history, mostly because relatively few Supreme Court seats have been vacated during the final year of a presidential term. But when vacancies have occurred, they have generally been filled. In the last century, five Supreme Court justices were both nominated and confirmed during a presidential election year, and one additional justice was confirmed, although he had been nominated late the year before.
So the Republicans’ unprincipled and obnoxious treatment of Merrick Garland cannot be excused by precedent or some phony rule. It was, pure and simple, a political act to keep off the court a nominee whose judicial philosophy they did not like. Those are the new rules of the game.
A few old-timers, notably including Lindsay Graham, have consistently played by the old rules. For that they deserve some credit, but they are not the ones calling the shots. Those who are calling the shots either apply one set of rules to their own party and another to the opposition, or simply want to win the political war.
Whether Gorsuch would deserve to be confirmed under the old rules makes for an interesting, albeit academic debate. He is certainly qualified in terms of education and professional experience. And he appears to have a winning demeanor and a fine judicial temperament. The debate would come down to the third criterion, whether he adheres to fringe political or judicial views that are anathema to our shared values.
Can a position that is widely shared by an entire political party, and approved by at least a large minority of Americans, be viewed as fringe or antithetical to our values? Reasonable people could disagree on the answer to that question, both in terms of the positions themselves and whether there is sufficient evidence that the nominee holds them. And that may not even be the right question.
Exhibit A in the case against Gorsuch is that he voted with the majority on the 10th Circuit Court’s 5-3 ruling in the Hobby Lobby case. That case held that the ACA’s requirement that employers provide contraception under their healthcare plans was unconstitutional as applied to a closely held corporation owned by individuals who objected on religious grounds. One of the unique, and arguably fringe elements of that decision is that it was the first time the courts have ever recognized a for-profit corporation as a “person” capable of holding religious beliefs.
In addition to Hobby Lobby, the case against Gorsuch includes his advocacy of gun rights, his support for the death penalty, his opposition to assisted suicide, and his judicial philosophy in general.
Given that the Supreme Court affirmed the 10th Circuit’s Hobby Lobby decision (albeit by a 5-4 vote), and that most of the rest of the case against Gorsuch comes straight out of the platform of the Republican party (who, need I remind you, just creamed the Democrats in the 2016 election), is it intellectually honest to say that these positions are “fringe,” or antithetical to commonly shared values?
Maybe not, but they are still sufficient reason to oppose confirming Gorsuch. Even if his views are widely shared in Republican circles, they are anathema to everything Democrats hold dear. In today’s world, that’s enough. The old rules are dead. The Republicans killed them not only by their mistreatment of Merrick Garland, but also by their politicization of everything from national security to the laws of nature and science. Democrats must fight back. This is not revenge, it is self-defense.
Senate Democrats cannot play David to the Republicans’ Goliath. They cannot fight this war with a slingshot and expect to win merely because they occupy the moral high ground. David hasn’t slain Goliath since, well, David and Goliath. And David would have been roadkill if Goliath had come after him in a Humvee.
Maybe we’ll get back to the old rules sometime in the future. But that is not going to happen soon. In the meantime, Senate Democrats must resist because if they don’t they will lose whatever standing they have left with their increasingly energized and mobilized base. The base rightly perceives that this nomination threatens everything they hold dear, from equal pay to voting rights to reproductive rights to LGBT rights to the environment and much more. This is no time to play nice. As so well stated by Eugene Robinson, “the Democratic base is in no mood to hear about the clubby traditions and courtesies of the Senate.”
The Democrats are likely to lose this battle, but if they want to save their souls, they better go down fighting.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated.