Judge Neil Gorsuch’s nomination to the United States Supreme Court presents a painful conundrum for Democrats. A vote to confirm Gorsuch effectively vindicates the Republican’s unprecedented and despicable behavior around President Obama’s nomination of Merrick Garland. A vote to confirm Gorsuch also allows a dysfunctional and unqualified administration under investigation by the FBI to more permanently and forcefully establish its ethos in America.
On the other hand, a universal “no” vote on Gorsuch, based in reaction to Garland’s nomination, potentially acts to bring Democrats down to Republican levels of intransigence. Use of the filibuster takes this a step further and likely sets the stage for destruction of the filibuster as a tool (whether this matters is up for debate).
In normal circumstances, Democrats would be able to consider Gorsuch on his merits, as a highly qualified but extremely conservative judge. If Democrats were able to consider and vote on Gorsuch’s nomination on the merits it would provide greater legitimacy to the nomination and consent process, to the ultimate decision of the Senate, and to the makeup of the Court.
In the spirit of reestablishing norms around Supreme Court nominations – and in an attempt to bolster the legitimacy of, and respect for, those government institutions on which the republic depends – we propose the following:
Democrats should demand that Gorsuch specifically address the Garland nomination and lack of hearing. This is, after all, a matter of Constitutional interpretation of the Advice and Consent clause, not merely a political question as Gorsuch stated in his refusal to address the issue. If Gorsuch denounces the Republican Party, and Senators McConnell and Grassley in particular, as violating the spirit and intent of the United States Constitution, and if Gorsuch rebukes Republicans for actively undermining faith in the Court and in the Constitution, Gorsuch will have earned himself the right to be considered on the merits.
And he will have made the country stronger.
It is important that Gorsuch make this statement prior to the Judiciary Committee vote and prior to the full senate vote. It would show that Gorsuch puts country and Constitution above his personal interests and career, an attribute that should be the floor for potential Supreme Court members (and presidents and congress members… one can dream). It would show that Gorsuch has a conscience and the courage and resolve to speak truth to power, even when it could impact votes on his nomination.
Denouncing the Garland circus would also show Gorsuch’s respect for the institution on which he seeks to serve – Republican refusal to hold hearings for Garland brought politicization of the Court to a new level, undermining faith in the United States’ checks and balances. And frankly, by increasing the strength of, and public respect for, the Court, Gorsuch would add to his own power if he were confirmed.
If Gorsuch declines to defend the Constitution by denouncing Judge Garland’s and President Obama’s treatment by Republican senators, Gorsuch reveals himself to be just another Republican Party political hack who places his own interests over those of the American people and over the health of the country and Constitution. If Gorsuch declines to denounce Republican disrespect for the country and Constitution, Gorsuch is unfit for the Court and Democrats should filibuster his confirmation, regardless of any other merits of his candidacy.