Neil Gorsuch will soon be an associate justice of the Supreme Court. Republicans controlling the U.S. Senate changed the rules Thursday, paving the way for the confirmation of President Donald Trump’s nominee for a lifetime appointment on the nation’s highest court.
Detonating the chamber’s “nuclear option” to allow confirmation with 51 votes instead of the traditional 60 was anti-climatic, its charge unfolding in the tedium of parliamentary minutiae. There were hypocritical words emanating from both sides in this blame game of a debate as senators denounced the very votes they were casting. Jimmy Stewart call your office. Standing on principle is no longer a virtue.
Now the polarization is complete, driven by partisans in each party. The filibuster that required 60 votes to end is now gone for Supreme Court nominees — and likely for legislation as well.
In the end, the nation’s ever-widening political dissonance had bred too much distrust for a bipartisan consensus, even in the Senate, an institution designed to be a check on the whims of the moment. Now senators in the minority will have little sway.
Gorsuch, while a right-wing dream, is nonetheless well-qualified and in another era would have gotten Democratic support. But Merrick Garland was just as qualified, more experienced and much more mainstream. Senate Majority Leader Mitch McConnell would not even give Garland the courtesy of a hearing last year after President Barack Obama nominated him to replace the late Antonin Scalia.
That was outrageous. And the Democrats’ retaliation for Garland is understandable but still regrettable. McConnell says the snub of Garland was really payback for the Democrats’ elimination of the filibuster in 2013 to confirm Obama’s lower-court nominees. Democrats said they did that because Republicans were unfairly blocking them. Republicans countered that Democrats thwarted President George W. Bush’s nominees. The devolution of comity and compromise was beyond repair this week.
Trump will get credit for selecting Gorsuch, but in many ways the president was a tool in the crusade for a more conservative court on social and business issues that began years ago. Gorsuch was carefully selected by religious activists and free market business leaders as their avatar to change the federal judiciary. To win over conservatives during the campaign, Trump promised the Heritage Foundation and the Federalist Society that he would pick a nominee from their list; somehow, Gorsuch had been given their stamp of approval. And Trump kept his promise.
Democrats are correct in their prediction that Gorsuch, 49, will influence the court for a very long time because of his youth, collegiality and force of intellect. Only over time will we know whether he was truthful in his testimony that he respects precedent and makes the integrity of the court his priority. We can only hope that the gift of empathy, which eluded Gorsuch in some of his lower-court rulings, finds him.
In the end, this wasn’t really a fight about Gorsuch. At some point, Democrats will be back in control and their base will want a mirror image to the left. And that will be just as worrisome. The Supreme Court mustn’t be just another partisan prize. Its credibility as a fair arbiter for all is in jeopardy. The risk is that our democracy will have lost its case. — The editorial board