Donald Trump’s selection of Judge Neil Gorsuch to fill the current Supreme Court vacancy has left Democrats in a difficult position. On one hand, Judge Gorsuch is a qualified and conventional nominee on the conservative end of mainstream legal thought. Under a traditional understanding of the Senate’s constitutional role of providing “advice and consent,” qualified nominees without extreme ideological records should receive a prompt hearing and handy confirmation. Obstruction of Judge Gorsuch under these standards would upend the smooth functioning of the judiciary and politicize the Court, thus undermining public faith in a bedrock American institution.
On the other hand, these aren’t traditional circumstances. The vacancy may be current but it isn’t recent. The open seat was created by the death of Justice Antonin Scalia one year ago next week. It has remained open for this long because the Republican-led Senate stymied then-President Obama’s selection of Judge Merrick Garland for purely political reasons. Senate Republicans refused to meet with, give a hearing to, or provide an up or down vote to Judge Garland—another nominee with conventional qualifications and mainstream views. They attempted to support these extraordinary tactics with a precedent that had never been followed and a rule that didn’t exist. But the emptiness of the justifications wasn’t really an issue. The public was absorbed with the presidential race and a candidate who presented even flimsier explanations for his behavior with even greater conviction. As a result, conservatives grabbed 30+ years of judicial power.
Now, here we are. A stolen seat, a badly politicized judiciary, a constitutional order upended, and a choice to be made. Senate Minority Leader Charles Schumer and several other Senate Democrats have intimated that they will filibuster Judge Gorsuch’s nomination, and will do so for reasons wholly apart from the nominee’s credentials and record. Even granting that the Garland affair was responsible for escalating the judicial wars to unacceptable heights, preventing a confirmation vote on a Supreme Court nominee in the first year of a president’s term continues the dysfunctional spiral. Democrats are essentially proclaiming they will do their best to keep the Supreme Court bench depleted for at least the next four years. This is a policy that if continued would mean that vacancies would never be filled unless one party holds both the presidency and a senate supermajority. It invites the so-called “nuclear option,” eliminating the filibuster for Supreme Court picks. And it will contribute to a further erosion of our faith in an impartial judiciary. It furthers the precedent of unprecedented obstructionism.
For this reason, there are no easy answers about which approach is the just one to pursue (whether it makes tactical sense to obstruct the Gorsuch nomination is an entirely different question, and one best left to another post). Liberals are split. In defense of the conventional approach to confirmation battles, Georgetown professor and Supreme Court practitioner Neal Katyal argued recently in the New York Times that Democrats should hold fast to applying apolitical criteria to Gorsuch, elevating the rule of law over partisan politics:
I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws? I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law.
A recent opinion piece by Washington Post columnist E.J. Dionne provides the logical rebuttal, arguing that Republicans’ dirty play on judicial confirmations necessitates street justice:
If someone slugs you, should you be condemned if you defend yourself by swinging back? If a bully makes someone’s life miserable, will taking him on and calling his bluff only make matters worse? Perhaps you think the above is hyperbolic, and I accept that my line of thinking won’t appeal to pacifists. But if you are not a pacifist, ask yourself how this procedural extremism will be halted if one side is rewarded for violating all the conventions and rules of fair play and the other side just meekly goes along.
Both arguments are valid. We shouldn’t easily dismiss the destruction of important democratic norms with the child’s argument that “they started it.” At the same time, Democrats cannot be expected to pay a permanent price for being the only party to put country before party. So, what to do?
Sadly, the answer lies in recognizing that our judicial nomination process, and indeed our nation’s belief in an impartial judiciary, is irretrievably broken. Were this simply a matter of a single stolen seat, restoring respect for the judicial branch could take primacy over short-term political advantage. But the GOP’s consistent assault on the independence and neutrality of the judiciary has reached such disquieting levels that no decision Democrats make will, as Mr. Katyal put it, “help restore confidence in the rule of law.”
Forget Judge Garland for a moment. Conservatives’ recasting of the judiciary as a force for ideological warfare extends far greater than that debacle. True, Democrats made ideology a criterion for confirmation in rejecting Robert Bork and narrowly failing to do the same to Clarence Thomas (although there were strong reasons for opposing their nominations, and both men received a full hearing and an up or down vote). More recently, Democrats’ demagogic demands and talk of “litmus tests” regarding overturning Citizens United has turned a poor court decision into a political football. But Republicans have gone much farther, actively eroding our country’s confidence in judges as more than simply politicians in robes.
There was the abusive use of procedural obstacles, senatorial holds, and home-state senatorial prerogatives known as “blue slips” that gummed up President Obama’s selection of even uncontroversial nominees for uncontroversial judgeships. There was Senators Mitch McConnell and Charles Grassley’s outrageous filibustering of three moderate nominees for the D.C. Circuit founded on the empty argument that there was no need to fill existing vacancies based on the court’s workload. Now, there are even more serious attacks on the rule of law in the new administration. Last June it was then-candidate Trump’s weeks long assault on a federal judge’s ability to be impartial due to his Mexican ancestry. And just last week it was now President Trump’s unsettling broadside against a Republican-appointed judge’s decision striking down his executive order restricting travel from seven predominately Muslim nations. The President’s chilling proclamation disparaged the “ridiculous” ruling of a “so-called judge.”
Clearly our judicial politics are badly broken. In this climate, what could Democrats possibly do alone to fix it?