37° Good Afternoon
37° Good Afternoon

The best strategy for Democrats on Neil Gorsuch

President Donald Trump with 10th U.S. Circuit Court

President Donald Trump with 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch, his choice for the Supreme Court, in the White House in Washington on Jan. 31, 2017. Credit: AP / Carolyn Kaster

Charles Schumer, leader of the Senate minority, has said that he will ask Democrats to filibuster the nomination of Judge Neil Gorsuch. In response, the Senate Democrats have four options. Each of the four has considerable appeal, but each also runs into significant objections.

1: Return to normal order. At least since the unsuccessful nomination of Judge Robert Bork in 1987, Supreme Court nominations have been highly politicized and occasionally ugly, and the situation has been getting worse. Before Bork’s defeat, it would have been possible to say that so long as a Supreme Court nominee meets basic tests of character and competence, the Senate will confirm him — and that members of the opposing party will not mount a serious protest. After all, Antonin Scalia was confirmed by a vote of 98-0 in 1986.

At least on some days, a principled Democratic senator might be tempted to think: Let’s stop this, here and now. Judge Gorsuch clearly passes the character and competence tests. That’s that. An advantage of this approach is it might reduce partisan contestation over Supreme Court nominees in the future.

The chief objection is that if you’re in a real fight, and if the national stakes are high, unilateral disarmament can be a terrible idea. After the Republicans’ disgraceful refusal even to allow a hearing for Judge Merrick Garland, should the Democrats suddenly capitulate, when there is no guarantee that Republicans will ever show reciprocity? Where’s the good in that?

2: Return to normal order — while rejecting judicial “extremists.” Democrats might call a halt to the confirmation wars of recent years and return to the approach they embraced during the Bork nomination. Sure, presidents are entitled to deference, but the Senate need not confirm people who are “out of the mainstream.” Robert Bork, no; Anthony Kennedy, yes.

Democrats could endorse this approach while sincerely insisting on the need to return to normal order, and while signaling to the White House and to Senate Republicans that they are prepared to be reasonable. In one version of this approach, Democrats might even vote to confirm Judge Gorsuch on the ground that he is a distinguished nominee who falls within the mainstream. In another version, Democrats might vote a firm but nonetheless gracious and respectful “no” (without resorting to the filibuster), carefully engaging with the nominee’s record to argue that he has not established that he is a mainstream figure.

The appeal of an approach of this sort is it could well reduce the intensity of future confirmation battles, while leaving the Democrats room to fight hard against genuinely unacceptable picks. But the objection is obvious: It might seem to be another form of capitulation, especially in the immediate aftermath of the Garland fiasco.

3: Protect liberty and equality on principle. For many Democrats, the issue is simple. In view of the immense importance of Supreme Court nominations on the most fundamental questions — racial justice, privacy, executive power, gun control, campaign finance — it is perfectly appropriate for senators to oppose nominees on the ground that they disapprove of their likely judgments, above all if those judgments would be destructive to liberty and equality.

From this point of view, partisan battles over Supreme Court nominations are a reasonable response to the centrality of the Supreme Court to American life — and to the fact that political convictions inevitably affect the justices’ votes. Democrats can explain to the public that their full-throated opposition is principled, in the sense that it depends on what the nominee is likely to do.

The appeal of this position is that it is refreshingly candid. The objection is that it acknowledges that confirmation wars are here to stay, which would be pretty terrible news.

4: It’s all about political power. The Republicans’ success in blocking the Garland nomination might mean that with respect to Supreme Court nominations, the only real question now is: Do you have the votes?

If Hillary Clinton had been elected president, and nominated someone as far to the left as Gorsuch is to the right, there is no question that Republicans would have done whatever they could to stop that nominee. They used their power to block Garland. Why shouldn’t Democrats do the same?

The best answer is that two wrongs do not make a right. The system for confirming Supreme Court justices is badly broken, and if you insist that it’s all about power, it will stay that way.

For this reason, we should rule the fourth approach out of bounds. And under current conditions, no Democrat is likely to be drawn to the first.

That leaves the second and third options, and, for many Democrats, the choice between the two will not be obvious. But in my view, the balance of considerations favors some version of the second. It reflects a sensible understanding of the system of separation of powers, and it would be a form of statesmanship. We can certainly use some of that.

Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”


We're revamping our Comments section. Learn more and share your input.