It’s been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding a constitutional duty that both parties have honored throughout U.S. history and hobbling an entire branch of government for partisan gain.
President Donald Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died last February. Instead, he chose Neil Gorsuch, a very conservative judge from the 10th U.S. Circuit Court of Appeals whose jurisprudence and writing style are often compared to those of Scalia.
If Gorsuch is confirmed, the court will once again have a majority of justices appointed by Republican presidents, as it has for nearly half a century. For starters, that spells big trouble for public-sector labor unions, environmental regulations and women’s access to contraception. If Trump gets the chance to name another justice, the consequences could be much more dire.
In normal times, Gorsuch — a widely respected and, at 49, relatively young judge with a reliably conservative voting record — would be an obvious choice for a Republican president.
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These are not normal times.
The seat Gorsuch hopes to sit in should have been filled, months ago, by Merrick Garland, the chief judge of the Court of Appeals for the District of Columbia Circuit, whom President Barack Obama nominated to the court in March. Garland, a former federal prosecutor and 20-year veteran of the nation’s most important federal appeals court, is both more moderate and more qualified than Gorsuch.
That meant nothing to Senate Republicans, who abused their power as the majority party and, within hours of Scalia’s death, shut down the confirmation process for the remainder of Obama’s presidency. There would be no negotiations to release this hostage; the sole object was to hold on to the court’s conservative majority. The outrageousness of the ploy was matched only by the unlikelihood that it would succeed — until, to virtually everyone’s shock, it did.
The destructive lesson Senate Republicans taught is that obstruction pays off. Yet they seem to have short memories. After Senate Democrats refused to attend votes on two of Trump’s Cabinet picks Tuesday, Sen. Pat Toomey of Pennsylvania said, “We did not inflict this kind of obstructionism on President Obama.” Even absent such dishonesty, any Democratic impulse to mimic the Republican blockade by filibustering Gorsuch would be understandable.
But Senate Democrats should be wary of stooping to the Republicans’ level, especially because any such effort is likely to prove futile, since Republicans have the votes to simply eliminate the use of the filibuster against Supreme Court nominees. The hearings should, however, present Democrats with an opportunity to probe Gorsuch’s views.
So what might a Justice Gorsuch mean for the court? Like Scalia, he is an originalist, meaning he interprets the Constitution’s language to mean what it was understood to mean when it was written — an approach that has led both men to consistently conservative results.
Gorsuch’s similarities to Scalia extend into several areas of the law. Since his appointment in 2006, by President George W. Bush, he has voted consistently in favor of religious-liberty claims, such as requests for exemptions for private companies and religious nonprofits that oppose the Affordable Care Act’s contraceptive mandate.
He is even more conservative than Scalia in at least one area — calling for an end to the deference courts traditionally show to administrative agencies, like the Environmental Protection Agency, that are charged with implementing complex and important federal laws.
Given the events of recent days, senators should press Gorsuch on how he would approach constitutional questions that have already arisen out of Trump’s actions as president, like his order barring refugees and immigrants from seven Muslim-majority countries, or his alleged violation of the Emoluments Clause of the Constitution.
While Gorsuch’s views on abortion are not known, he has written extensively about assisted suicide and euthanasia. In his book on the topic, he wrote that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” By himself, Gorsuch would not upset the court’s balance on abortion rights or affirmative action, but if one of the more liberal justices or Justice Anthony Kennedy step down during Trump’s presidency, a solidly right-wing majority could quickly overturn those precedents.
Supreme Court nominations are among the most important decisions a president makes, and certainly the most enduring: A nominee like Gorsuch could sit on the court for more than three decades. At a rally last summer Trump said: “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.”
That may have played well on the campaign trail, but Trump’s failure to choose a more moderate candidate is the latest example of his refusal to acknowledge his historic unpopularity and his nearly 3-million-vote loss to Hillary Clinton. A wiser president faced with such circumstances would govern with humility and a respect for the views of all Americans.