This might get me into trouble, but here’s my take on Gorsuch. He deserves to be confirmed. I don’t agree with his legal philosophy but, from what I know so far, he is competent, by all accounts intelligent, has regard for the rule of law, and seems like he would fit on this court. Unlike other Trump nominees (I’m talking about you, Betsy) he is a legitimate selection.
Until he is impeached, Trump has the right to pick a capable jurist for the High Court that fits with his party’s perspective, and he seems to have done that here. If you are a progressive and have a problem with it, then I hope you voted for Sec. Clinton. If you stayed away, then one price you willingly chose to pay was the difference between Garland and Gorsuch for the next 30 years, give or take. So, show up next time.
But here is where it gets interesting. The confirmation process could be surprising and encouraging, or hard, polarizing, and exhausting. When Republicans refused to consider Merrick Garland in March, 2016 they set a cynical new Senate standard: a Chief Executive will only be assured of having his (or her) Supreme Court nominee considered if his party also has control of the Senate. Less than a year later Republicans could further change the filibuster rules for Supreme Court nominees, continuing the downward slide of short-sighted, tradition-busting expediencies which simply set new precedents that the other party will eagerly use in 4 or 8 years. The Democrats could use any number of tactics of their own to obstruct or delay Gorsuch, like refusing to provide a quorum, or attempting to hold hostage other Senate activity, thereby continuing the downward slide of short-sighted, tradition-busting…(see above).
But what if Senate Democrats promised to confirm Gorsuch without Republicans having to resort to the “nuclear option”? In return Republicans agree to support certain Democratic proposals, or reject some other particularly unqualified cabinet nominee (I’m talking about you, Betsy) and replace with a more broadly acceptable and qualified choice. The Republicans get their Justice without further damage to Senate rules, the Democrats get some movement on an important issue, and Americans get a taste of good, old fashioned political compromise. Mitch McConnell and Chuck Schumer start looking like Tip O’Neill and Ronald Reagan. Best of all, the process doesn’t require permission from the executive branch and it could begin to define for Republican legislators a line of independence from the White House which I expect they will desperately want by 2018.
It only works, of course, if legislators believe there is value in the rules and traditions of governance that have built up over the years. I do. Both sides would likely get excoriated by their most ardent supporters but I, for one, would send Democratic and Republican Senators a thank you for preserving the types of rules that limit partisan heavy handedness, even demagoguery.
I am not at all worried about a new conservative era on the court. I firmly believe in “the arc of the moral universe” and all that. It may take a bit longer with Gorsuch instead of Garland but we are bending toward justice, of that I’m convinced. What I do want is to see in the meantime, is useful governing traditions honored rather than partisan procedural extortions with every change in administration.
So, c’mon ladies and gentlemen of the Senate…do some horse-trading and give us a break.