The following editorial appeared in The San Diego Union-Tribune on Wednesday, Feb. 1:
When it comes to vetting Supreme Court picks, senators of both parties should avoid getting in the way of distinguished nominees within the broad judicial mainstream, especially those who have proven themselves to be highly competent, experienced, ethical and not extremist.
This point of view used to be widely accepted. But since 22 Democrats opposed John Roberts in 2005, each new nominee has faced sharp partisan criticism and substantial opposition.
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Now President Trump has nominated Neil Gorsuch, a judge on the Denver-based 10th U.S. Circuit Court of Appeals. Given that this comes after one of the dirtiest tricks in Senate history – the Republican majority’s refusal to even hold hearings on qualified, moderate Merrick Garland, the federal appellate court judge nominated by President Obama in March to replace the late conservative Antonin Scalia – Senate Democrats may go to extraordinary lengths to try to block Trump’s nominee. They are eager to use Gorsuch’s nomination as a vehicle both to demonstrate their understandable fury over Garland’s treatment and to show solidarity with the millions of Democrats outraged over Trump’s victory despite losing the popular vote and Trump’s actions in his first two weeks as president.
But two wrongs still don’t make a right. Gorsuch is an impressive jurist, and that judgment goes beyond his Harvard law background, his clerking for two U.S. Supreme Court justices and the acclaim he’s received as a judge and professor. He is no Republican hard-liner. Gorsuch has views about criminal justice that emphasize civil liberties, not government authority, far from the norm for conservatives. In 2013, he gave a powerful, laudable speech lamenting the ever-growing complexity of the criminal code, wondering “what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”
There will be pushback from pro-choice groups. Gorsuch has not written explicitly about Roe v. Wade, but much has been read into his condemnation of assisted suicide on the grounds that “the intentional taking of human life by private persons is always wrong.” Yet analysts say his confirmation would still leave the anti-Roe faction on the court a vote or two from the majority. Chief Justice Roberts is a conservative, but his history suggests he’d be wary of tossing out such a high-profile precedent.
For these reasons, we believe that if Gorsuch does well in his nomination hearings and if no red flags emerge in the heavy scrutiny he is likely to face in coming weeks, he deserves confirmation. There’s also a chance that the nomination fight fizzles out because of simple politics. Ten Senate Democrats up for re-election in 2018 represent states that Trump won on Nov. 8, and some may worry about what a no vote on Gorsuch would mean for their re-election chances.
Democrats may also want to delay any knock-down, drag-out confirmation fight for the future day Trump may get to replace one of the court’s liberal judges with a conservative pick instead of swap a conservative for a conservative.
But even if Democrats mount opposition, the Republicans have 52 votes in the Senate and can use the “nuclear option” of changing Senate rules to overcome a filibuster if Republicans can’t muster 60 votes to block it. Barring a bombshell, Gorsuch should prove he’s within the legal mainstream and be on his way to confirmation.
If he is confirmed, everyone should hope that Gorsuch will be a thoughtful, wise justice – even if many remain angry about Garland.