For more than four decades, presidential candidates have campaigned on promises to select jurists who will interpret the Constitution in ways that satisfy political supporters. Donald Trump delivered on that promise with true showmanship before a prime-time television audience Tuesday night, when he nominated federal appeals court Judge Neil Gorsuch to replace the late Antonin Scalia.
But Scalia’s seat, which became vacant after he died almost a year ago, wasn’t Trump’s to fill. In a travesty of American politics, the Republican-controlled Senate denied even a confirmation hearing to Merrick Garland, the highly qualified federal appeals court judge nominated by President Barack Obama in March 2016. The GOP feared that anyone less conservative than the very extreme Scalia — even a moderate like Garland — would change the court’s direction. Even more brazenly, the Republicans used the open seat to rouse evangelicals, a key element of their support. Their stonewalling betrayed tradition and has dangerously sunk the nomination process into a toxic partisan brew.
Gorsuch has a stellar resume, and at least he will get the courtesy of a Senate hearing to explain his theory of original intent when interpreting the Constitution. But that document is often vague, if not silent, on many of the contentious social issues that come before the court. While we worry that Gorsuch’s legal philosophy is just another way to justify decisions that are reliably conservative, he at least promises a streak of unpredictability, especially in reining in police and prosecutorial overreach.
In most cases, Trump’s nominee is likely to deliver the same outcome as Scalia, but he is potentially much more influential. Scalia was uncompromising, preferring to dissent alone. Gorsuch’s intellect, personality and skill in crafting cohesive opinions could swing justices. His views on religious liberty and other First Amendment protections should be explored. He has not ruled in an abortion case, but supporters and opponents of his nomination describe him as pro-life based on his rulings in contraception-funding cases and because he wrote a book opposing assisted suicide, an area of the law with little consensus and in which his expertise could be formative. While only one sitting justice, Clarence Thomas, is on record supporting the overturning of Roe v. Wade, Gorsuch would help decide many state restrictions on abortion that are working their way through the courts.
Senate Republicans have 52 votes and will need Democratic help to get to the 60 votes needed to break a likely filibuster. Otherwise, Majority Leader Mitch McConnell could invoke the “nuclear option” and enable Republicans to approve Gorsuch with a simple 51-vote majority. For the nation, this means the Senate would no longer have an institutional check on an unqualified or extremist Supreme Court nominee.
Democrats are being pressured to seek revenge for Garland. That anger is understandable. However, unless some new information arises that would disqualify Gorsuch, that impulse should be resisted.
Instead, Democrats should stand as a party of principle. If they attempt to repeat the disgraceful process that sidelined Obama’s selection, the horrible divisiveness of our national politics could reach new depths and eventually erode the legitimacy of judicial review. — The editorial board