The bad news, Democrats, is that President Donald Trump has selected a qualified and thoughtful jurist to fill the Supreme Court seat that coulda woulda shoulda gone to another fine mind and fine man, Merrick Garland. Bad news, that is, because Neil Gorsuch can’t be dismissed as incompetent or reckless or chosen on account of being somebody’s third cousin or a dude who did a deal with Trump back in the day.
But as justifiable as Democrats’ anger is over the wrong done to former President Barack Obama’s final nominee to the high court, the good news is the same as the bad. Because unlike Trump’s discriminatory refugee ban, or too many of his other nominations, or his rambles through rhetorical brambles that made it sound like he only recently heard of Frederick Douglass — “somebody who has done an amazing job and is being recognized more and more, I notice” — the president’s pick of the 49-year-old federal appeals court judge is not just defensible but a standout.
By all accounts, the Coloradan Trump has chosen is a younger, calmer Antonin Scalia — a strict originalist but without the late justice’s flair for obscure terms like “jiggery pokery,” or his love of a good lawyerly brawl.
There is a reason for that. Conservatives who both doubted and disliked Trump on substance as well as style required assurances all but written in blood that on the Supreme Court as on nothing else, there would be no unwelcome surprises. “We’ve got him in concrete,’’ one conservative directly involved in the negotiations with Team Trump said months ago. One in five voters said in exit polls that the Supreme Court was the most important factor in their presidential choice — and 57 percent of those voters went for Trump. These social conservatives were not kidding around, and this Gorsuch nomination, or one much like it, was always their price. On this issue, Trump supporters not only took him literally but expected him to take them at their word, too.
Of course, Democrats in Congress are in a bind with their base. Even as they act out by boycotting votes on certain nominees, the left is so furious that their representatives have gone along with any of Trump’s picks that thousands of protesters showed up outside Senate Minority Leader Chuck Schumer’s Brooklyn apartment on Tuesday night.
It’s not surprising, then, that Schumer has signaled that Democrats will filibuster the Gorsuch nomination. “The Senate must insist upon 60 votes for any Supreme Court nominee,” he said in a statement. “The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the executive branch.”
Democratic senators who said right away that they would vote against the Columbia, Harvard and Oxford-trained judge include Sherrod Brown, Ed Markey, Jeff Merkley, Elizabeth Warren and Ron Wyden, who said “Gorsuch represents a breathtaking retreat from the notion that Americans have fundamental constitutional rights.” He doesn’t, but what those rights include continues to be a matter of debate, both on and off the court.
If Democrats do filibuster, Republicans would need to locate 60 “yes” votes for Gorsuch — the same number Republican filibusters forced Obama’s nominees to get. In other words, Republicans would have to win over at least eight Democrats. But at least seven Democrats have already questioned the plan. Further, the president is already prodding Senate Republicans to invoke the “nuclear option” that would change the rules and push Gorsuch through anyway.
Even in the unlikely event that revenge is exacted by Democrats, then what? Is the plan to try to keep the seat open indefinitely? The conservative viewpoint is that it’s the likes of a Gorsuch who would check the president’s excesses. And they aren’t the only ones who feel that way.
“Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?” asks Neal K. Katyal, a Georgetown law professor and acting solicitor general in the Obama administration. From first-hand experience, Katyal argues in a New York Times piece headlined, “Why Liberals Should Back Neil Gorsuch,” he’s convinced that the nominee “would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence.”
Gorsuch’s record is conservative, and he argued against the Affordable Care Act’s contraceptive mandate in the Hobby Lobby case, writing of the Green family that owns the craft stores that, “As they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows. … The Greens’ religious convictions are contestable. Some may even find the Greens’ beliefs offensive. But no one disputes that they are sincerely held religious beliefs.”
But his record also includes evidence that he’s against the kind of executive branch overreach that Republicans accused Obama of and liberals are rightly frightened of under Trump.
He has ruled against overreach by law enforcement, too, for example in United States v. Carlos, dissenting from the majority view that police did not violate the Fourth Amendment when they breezed past No Trespassing signs and knocked on a suspect’s door. In United States v. Ackerman, he argued that the search of a laptop that uncovered child porn was nonetheless unconstitutional.
While progressives screaming “Do your job!” outside Schumer’s window want him and other Democrats to say no to everything Trump says and does, that’s not a strategy that will work — or be rewarded by an electorate that so far supports the worst of what the new president has done, in effect imposing a religious test that blocks entry from seven predominantly Muslim countries.
Gorsuch’s record on religious liberty and executive power suggest that if given the chance, he might well find that unconstitutional.