Colorado federal Judge Neil Gorsuch is likely to be the next justice on the U.S. Supreme Court, and brings with him the standard Ivy League academic qualifications and even a doctorate from Oxford. In a less contentious time, he might sail through the confirmation process in the manner of the justice he is replacing, the late Antonin Scalia, whose academic credentials and formidable persuasive powers charmed even senators who knew him to be a hard-right jurist.
But this is not a less contentious time. Republican senators denied, wrongly, President Obama’s constitutional right to nominate a Scalia successor with nearly a year left in his term. It mattered not that Obama’s choice, federal Judge Merrick Garland, had sterling credentials and a strong mainstream record. Republicans just wanted to repudiate a twice-elected Democratic president, no matter what.
So now, following a dramatic rollout of his nomination of Gorsuch (Trump’s ever the TV star), the president can expect Democrats to push back. And they are right to do so. The calls on the part of Republicans to quickly confirm Gorsuch ring hollow after their disgraceful repudiation of President Obama. There is payback in politics, and GOP senators know it.
For Trump, this represents a missed opportunity. After nearly two weeks of chaos and controversy (orders hindering the ACA, outrageous curbs on immigration, preposterous claims about a border wall), the president could have flummoxed his critics by following through on the Garland nomination. It would have been a sign of reason and cooperation.
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Instead, Trump’s advisers (the president is not much for policy or ideology) picked a 49-year-old judge whose rulings and writings indicate he would stand against gun control and for the death penalty and might support evangelicals’ views on some issues such as abortion rights. It’s no accident that Gorsuch would be one of the younger nominees in history, as conservatives want to dominate the court for as long as possible.
And Gorsuch’s admiration of Scalia’s conservative, literal interpretation of the Constitution as written by the Founders bodes well for the base of the Republican Party. The problem with Scalia’s philosophy was that it tended to be narrow and narrow-minded with regard to the rights of women and minorities.
Make no mistake: A good court needs conservatives and liberals and moderates, and the vigorous debate judicial diversity brings to gravel important issues such as free speech and other individual liberties.
But that is not what Republicans want. They want a court exclusively made up of conservatives whose rulings will be utterly predictable — the better to have a GOP agenda long on deregulation and protecting the status quo supported on the high court.
Before they mount too high a horse about Democratic opposition, however, GOP leaders should at least acknowledge that this is a fight they created when they denied an incumbent president the right to do his constitutional duty.