What to do with Neil Gorsuch?

If these were normal times, if, say, Antonin Scalia had dropped dead yesterday, leaving new Republican President Jeb Bush (elected, as presidents usually are, with more votes than the other major-party candidate) the opportunity to nominate Neil Gorsuch to the Supreme Court, I’d expect Gorsuch to be confirmed without a lot of bother.

I’d be bummed at the prospect of that seat remaining conservative for another 30-40 years. And I’d find a lot to criticize in Gorsuch’s approach to the law — mainly that he’s far too willing to side with the powerful against the powerless, and to invent new constitutional rights for corporations and fundamentalist Christians. But he is within the broad stream of American jurisprudence, and people who understand these things better than I do consider him an outstanding example of a conservative judge.

The Founders intended presidents to pick judges, and for the Senate to use its advise-and-consent power to weed out incompetence and cronyism. Gorsuch isn’t a Trump crony, and he seems competent. So after some hearings and speeches and a good look around for skeletons in his closet, I’d expect him to be confirmed with a large number of Democratic votes.

In normal times. Lawrence Lessig is looking at it pretty much the same way:

In normal times, with a normal (right wing) president, Neil Gorsuch would be a fine nominee for the Supreme Court. One can disagree with his views (I do); one can disagree with the manner in which he understands “originalism” (I do, in part). But if you believe (as I do) that an ordinary President has an ordinary right to choose the political character of his or her Supreme Court nominee, then, in ordinary times, the only question should be whether the nominee is qualified. Gorsuch is at least an order of magnitude better than qualified. He is a great, if very conservative, judge.

But these are not ordinary times.

No, they aren’t. The reason this seat is open is that the Republican Senate blockaded it during the last year of the Obama administration. If they had objected to Merrick Garland for some reason, they could have voted him down and Obama could have nominated someone else. Maybe Obama and McConnell could even have gotten together and agreed on somebody, moving the two parties back from the civil-war path they’ve been on for several years.

Voting down Garland would have been unprecedented in itself, because he is exactly the kind of experienced, respected, well-within-the-mainstream judge who usually sails through the Senate. But at least formally it would have fit the constitutional model. Instead, by simply refusing to hold hearings and announcing explicitly that they would similarly refuse any other Obama nominee, regardless of qualifications, Senate Republicans moved completely out of the previous course of American history.

That’s why it’s ironic that Gorsuch bills himself as an originalist, a judge who tries to find the lawmakers’ original intent and rule according to it — because the only reason this seat is open at all is that Republicans decided to let the Founders’ original intent be damned.

But their guy is in the White House now, so they want to turn the normal rules back on again, like the kid on the playground who calls time-out just before you tag him, and time-in when he’s safe on base. The question is whether Democrats should let them get away with it, and, if not, what the other options are.

This isn’t a stand-alone circumstance; it’s  part of the long-term decline of America’s democratic norms, which I’ve been writing about for several years (most recently when the Republicans blocked Garland). The model I always cite is the decline of the Roman Republic, where the norms were repeatedly whittled down for about a century until they were ultimately swept away by Augustus, who established the Empire.

Moments like this underline just how difficult it is to escape that downward spiral: Giving in won’t get you out of it, and there is usually not a reprisal option of just the right size to make your point without pushing further down the spiral.

For example, suppose Senate Democrats decided that they wanted to set a good example for future opposition parties and consider Gorsuch on his merits, independent of the history of this vacancy. In other words, they would accept getting rooked out of a liberal Supreme Court majority, in exchange for ending the cycle of attack-and-reprisal. They would sacrifice their partisan interests for the greater good of democracy in the United States.

The problem: This gracious move wouldn’t end the cycle of attack-and-reprisal. Quite the opposite, it would establish the precedent that Republicans can suspend democratic norms whenever it works to their advantage, and pay no price for it. It’s like when some guy sucker-punches you and then wants to declare peace. Agreeing to that deal won’t get you peace, it will just get you sucker-punched again somewhere down the line.

But what’s the alternative? Democrats are at a 48-52 disadvantage, so they can only block Gorsuch by filibustering. Republicans might then decide to escalate further by eliminating the filibuster on Supreme Court nominations (the only kind of nomination that was exempted when the Democrats limited the filibuster after Republicans came up with the unprecedented tactic of blockading positions entirely rather than just blocking particular nominees for cause). And if they don’t nuke the filibuster, and Gorsuch gets blocked, then what? Do the same thing with the next nominee, on and on for four years? That would also be an escalation. (Some Republicans threatened to do this if Hillary Clinton got elected, but it’s not clear whether they would have held together on that point.)

There is no reprisal of precisely the right size, and so we’re left with bad choices. Ideally, the process would go like this: Democrats would block Gorsuch, and Republicans would then negotiate in good faith, resulting in a nominee who moved the Court closer to consensus than to polarization. In other words, a new swing vote — someone ideologically between the most liberal conservative justice (Kennedy) and the most conservative liberal justice (Breyer). In other words, somebody in the mold of Sandra Day O’Connor. (It’s worth pointing out that Justice Garland would have fit that description as well. Obama was trying to do the right thing, and was spurned by Republicans.)

Do I expect that to happen? No. But I think we need to start down that road and let the Republicans be the ones to step off of it. So I support filibustering Gorsuch, while wishing somebody would offer me another viable option.

The argument Republicans made last year was that the American people should decide whether the Court flips from a conservative majority to a liberal majority. That’s explicitly not what the Founders wanted — they intentionally insulated the Court from politics — but even on those terms Gorsuch should be rejected, because the American people did not vote for Trump. As I said two weeks ago, Trump winning in the Electoral College makes him president; but losing the popular vote by such a wide margin wipes out any claim he might have to a mandate from the people. He certainly received no mandate to move the Court to the right.

If we ever do get back to a sane judicial appointment process, one piece of it should be that presidents stop appointing such young justices. Gorsuch is 49. If he lives as long as Ruth Bader Ginsberg already has, he’ll still be on the Court in 2051. This is a bipartisan thing, as presidents attempt to extend their influence as far into the future as possible: John Roberts was 50 when he joined the Court, Sonia Sotomayor 45.

This is another way that Merrick Garland would have been a step in the right direction, since he is 64. The Supreme Court ought to be the capstone of a long, distinguished career, not an attempt to claim an advantage 30 years in the future. It used to be that way: Oliver Wendell Holmes was 61 when Teddy Roosevelt appointed him in 1902. Thurgood Marshall was 59.

Another way to achieve the same result would be to term-limit Supreme Court justices at, say, 20 years. But that would take a constitutional amendment. Lifetime appointments were supposed to shield the Court from outside influences: It would be your final job, so you couldn’t be threatened with firing or bribed with the offer of a position after you left the Court. We’d have to address that problem some other way, but it doesn’t seem unsolvable.

Lawrence Lessig makes an alternative proposal: Gorsuch gets a hearing after McConnell resigns as majority leader. He calls it a “hypocrisy tax”. I think that’s about as likely to happen as getting an O’Connor-like replacement for Gorsuch.

Richard Primus expresses a somewhat nuanced approach on Balkinization: Yes, the Senate did wrong by Garland, but we can’t lose sight of the fact that the Republic survived Scalia and it will survive Gorsuch as well; the real threat is Trump. So the opposition to Gorsuch should always have its eye on Trump.

the Democrats need to see the confirmation process as an opportunity for shaping public discussion about Trump rather than as an occasion for attacking Gorsuch. Time spent attacking Gorsuch in particular (whether about qualifications or about substantive views or pretty much anything else) might not be time well spent: he is going to be confirmed. But what Democrats can do, I’d think, is keep saying that we are only here because the Republicans stonewalled a nominee at least as qualified as Gorsuch for no justifiable reason, and that the plurality of American voters voted to authorize Hillary Clinton, not Donald Trump, to fill the seat. They can ask Gorsuch himself to stand by his earlier written statements that Garland was a highly qualified nominee (for the DC Circuit) and to ask him whether the stonewall was appropriate. And they can ask him what he thinks about all sorts of Trump’s actions and statements. Is it appropriate for a public official to attack a federal judge as biased on the grounds of the judge’s ethnicity? What is the point of the Emoluments Clause? Do you think that this or that statement (quoted from Trump) is consistent with our constitutional values? And so on. Gorsuch might or might not answer, but the Democrats should find good ways to keep asking and to make those questions a big part of what people hear and talk about when they hear and talk about this process.

I don’t see why we can’t oppose both Gorsuch and Trump, but I agree this far: Personal attacks on Gorsuch, beyond his legal record, distract from the main narrative — unless somebody discovers something so damning that it will turn Republicans against him.

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  • petestasker  On February 6, 2017 at 11:20 am

    I like your bottom line that the resistance use the Gorsuch hearings to elicit his opinions on any number of questionable actions of Trump and his administration in the context of Gorsuch’s alleged “originalist” interpretation of the Constitution. And worth questioning over and over again is Gorsuch’s reading of the actions of the Republican senators in not even giving Garland a hearing.

  • busterggi  On February 6, 2017 at 11:48 am

    The Dems need to block Gorsuch for the sake of cutting the budget to reduce the national debt – praise be the GOP for showing that nine judges are unnecessary!

  • SCL  On February 6, 2017 at 12:02 pm

    Dems shouldn’t block the nominee, whoever he is. I honestly havent done all the research. But we need the supreme court. With a president doing unconstitutional actions, the supreme court is what will keep him in check. A full court is more powerful. It’s not the time for Dems to win a few cheap political points by completely undermining the one office that is able to stop trump.

    • jh  On February 8, 2017 at 9:59 am

      You are assuming that Gorsuch isn’t going to support Trump and his anti-American nonsense. You are also forgetting that it is precisely because the democrats behaved like adults and did the correct thing while the republicans behaved like poo-flinging chimpanzees that we have this scenario. If the democrats continue to give in, they are enabling more radical republicans to do far worse.

      • SCL  On February 8, 2017 at 5:39 pm

        I’m assuming that Gorsuch will be a tool for trump to be more authoritarian. But thats only one vote out of nine. Even conservative judges are to the left of these wannabe facists. The country gets more conservative, of course because theyre in charge. But it stops short of the unfettered plutocracy that trump wants. More conservative is tolerable if it means that the democracy holds.

      • Larry Benjamin  On February 8, 2017 at 7:15 pm

        Gorsuch’s comments to Sen. Blumenthal today were encouraging. He takes a dim view of the Executive branch disparaging the judiciary. He may be a conservative ideologue in the mold of Scalia, but he’s not going to be a rubber stamp for Trump.

      • weeklysift  On February 10, 2017 at 7:26 am

        I agree with Chuck Schumer on Gorsuch’s comments: If his “independence” from Trump is limited to some tut-tutting in private conversations with senators he’s trying to impress, it doesn’t mean much. He’ll be asked these kinds of questions in the public hearings. If he takes a strong stand then in defense of an independent judiciary, I’ll be impressed. But if he dodges any criticism of his benefactor, as I believe he will, to hell with him.

      • DMoses  On February 11, 2017 at 12:26 am

        On the other hand. Its very likely he will be like all the rest of the Republicans. They will say mean things about Trump and his appointments… but they won’t vote against them. I do not doubt that Gorsuch would be similar.

  • Larry Benjamin  On February 6, 2017 at 12:08 pm

    One strategy I’ve heard proposed is that the Democrats shouldn’t put up too much resistance to Goresuch – he isn’t, after all, any more conservative than Scalia was, and doesn’t change the court’s overall makeup in any way – but they should go to the mat to resist any future successors to any of the liberal justices. Replacing Ginsburg with a 40-year-old theocrat is something we won’t recover from, so the argument in that case would be “hey, we didn’t like Goresuch, but we held our noses and didn’t fight you on him, but we’re not going to do that a second time.”

  • Anonymous  On February 6, 2017 at 9:19 pm

    Yah, I like the approach of asking him questions about what he thinks of Trump’s actions. Keep the focus on the nut case in the white house.

  • Chris  On February 7, 2017 at 4:43 am

    “Ideally, the process would go like this: Democrats would block Gorsuch, and Republicans would then negotiate in good faith, resulting in a nominee who moved the Court closer to consensus…”

    No. Ideally, Democrats would block Gorsuch, and Republicans would then nominate and confirm Garland, because he is now the only person (besides, perhaps, Barack Obama) who could be considered a legitimate nominee.

  • Jeff Rosenberg  On February 7, 2017 at 9:44 am

    Here’s a fantastic idea as in a fantasy. Chief Justice Roberts issues the following statement: “In the interests of preserving the credibility of the Supreme Court in the eyes of the public, the currently sitting Justices respectfully request that the Senate consider the merits of Judge Garland and hold an up-or-down vote for him. Judge Garland was appropriately nominated by the President and is deserving of this consideration.”

  • Clara McIver  On February 7, 2017 at 12:08 pm

    There’s the Robert Reich stance–no supreme court justice until we are certain Trump isn’t under the influence of outside forces. Investigate the Russia connection and see Mr. Trump’s taxes at the very least.

  • nwbaxter  On February 12, 2017 at 7:52 am

    Forget trying to preserve the norms of democracy. Republicans have been trashing them for thirty years and the theft of President Obama’s appointment when the Senate refused to even hold hearings, much less a vote, signaled a complete rejection of their Constitutional duties and prerogatives BY REPUBLICANS. As bullies who believe that they are the only political party with a right to power, it is way past time to stand up to them. Filibuster and DO NOT FILL THIS SEAT with another right wing ideologue.

  • Kim Cooper  On February 15, 2017 at 4:03 am

    I can see all the arguments here. but I despair of the Democrats in the senate actually doing anything to stand up for themselves and us.
    As long as we are fantasizing, how about — we won’t consider Gorsuch unless McConnell, Ryan, and Bannen all resign. Then we impeach Pence.
    I loved the scenario of the Supreme Court insisting they consider Garland first.


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