Opinion

Eichenwald: Neil Gorsuch Is Supremely Qualified, and Must Not Be Confirmed

02_01_jurt_gorsuch_01
02/17/17
In the Magazine
Donald Trump announced his nomination of Neil Gorsuch to the U.S. Supreme Court on January 31. Joshua Roberts/Reuters

This is a very hard column to write. I’m about to abandon everything I have believed for much of my life about the proper principles for federal governance. Unfortunately, too many of our political leaders did that long ago, which makes this conclusion inevitable: Federal Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, must not be confirmed. Democrats must fight it to the bitter end. The preservation of the final, tattered remains of American constitutional government demands it.

This has nothing to do with Gorsuch as a nominee. On first assessment, there is no doubt he is eminently qualified, perhaps more so than several other sitting justices were at the time of their nomination. He has done it all. His legal education is first-rate, with a law degree from Harvard and a doctorate in jurisprudence from Oxford. He has seen up close how the Supreme Court works, serving as a clerk for Justice Byron White and then Justice Anthony Kennedy. For more than a decade, he has served as a judge on the U.S. Court of Appeals for the 10th Circuit, where he has gained a reputation as someone committed to the rule of law. He is a member of the federal Advisory Committee on Appellate Rules.

There was a time in history when that would have been enough. And if someone with Gorsuch’s pedigree had been nominated by, say, George W. Bush in his first term, I would be supporting Senate confirmation under Article II of the Constitution—not because I agree with him on policy, which to me has usually been irrelevant in selecting a judge, since the high court is not supposed to be filled with the equivalent of lifetime senators. If he is qualified and has a philosophy of jurisprudence that is widely recognized as legitimate—which Gorsuch does—that would be enough.

Related: With Gorsuch, Trump leans right but stays mainstream

But no more. Gorsuch, unfortunately, must be sacrificed on the altar of obscene partisanship erected by the Republicans in recent years. Temper tantrums designed to undermine the Constitution for naked political purposes cannot be rewarded. Our government cannot survive the short-term games-playing that has replaced fidelity to the intent of the Founding Fathers’ work in forming this once-great nation.

This goes back to the unconscionable decision of Republicans who refused to consider any nominee put forward by President Barack Obama following the death of Associate Justice Antonin Scalia. Obama nominated Merrick Garland, another eminently qualified candidate, who served as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the nation. But in a decision that will go down as one of the greatest abuses of the Constitution in this nation’s history, the Senate’s Republican majority, under the leadership of their unprincipled majority leader, Mitch McConnell, declared they would not give Garland hearings, would not examine his qualifications and would not take a vote.

Instead, they made up a rule: A nominee for the Supreme Court can be considered for only three-quarters of any president’s term. In the fourth year, confirmations have to wait until after the election. And so the Supreme Court has been hobbled for coming up on one year—and, because the confirmation hearings will inevitably drag on, it will be for months more to come.

The Republican fiat horrified those who care about the Supreme Court as an institution. Sixteen scholars sent a letter to Obama to express their dismay, writing, “The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate’s best practices and noblest traditions for much of our nation’s history.”

A letter to the Senate leadership, signed by 356 legal scholars, said refusing Garland a vote “is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.” 

In another move, 33 law professors issued to Obama and the Senate Republicans an open letter stating, “The Senate’s constitutional duty to ‘advise and consent’—the process that has come to include hearings, committee votes, and floor votes—has no exception for election years. In fact, over the course of American history, there have been 24 instances in which presidents in the last year of a term have nominated individuals for the Supreme Court, and the Senate confirmed 21 of these nominees.” 

No matter—the Republicans would not budge. Garland received no hearings, no vote, no consideration whatsoever.

And don’t think this has anything to do with a philosophy about how the court should run. When Obama in 2013 nominated Patricia Ann Millett to be a judge for the all-important circuit court in Washington, D.C., the Republicans pulled another “principle” out of their nether regions: no new judges should be added to that court to…save money. And because the court didn’t have a big enough workload. Seriously. Charles Grassley, the ranking Republican member of the Senate Judiciary Committee, said that nonsense without bursting out laughing at the magnitude of his mendacity.

At the time, there were four seats open on the D.C. circuit court. That Obama was unable to get a single judge confirmed to that court by Senate Republicans—despite having already served his first term and being only into the first year of his second—puts the lie to this idea that the GOP obstruction of judicial nominees was about anything other than undermining the constitutional authority of the president of the United States. Grassley, who will certainly appear in future history books as the political hack who destroyed our judicial branch of government, let the veil slip about his real reasons for trying to keep Obama nominees off the court: politics.

“The court is currently comprised of four active judges appointed by Republican presidents and four active judges appointed by Democrat presidents,” Grassley said in a floor statement on the Millet nomination, using the incorrect name for the Democratic Party in a petty game some conservative bullies find amusing. “There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.”

In other words, in the first year of a president’s term, the senior Republican most responsible for getting judicial nominees to the Senate floor for a confirmation vote said that disrupting a 4-4 balance on the panel second to the Supreme Court was politics. So a first-year nominee can’t be accepted, a fourth-year nominee can’t be accepted, and courts should function with the constant risk of tie votes because a president fulfilling his constitutional duty by nominating judges for courts is “ideologically driven.”

This might explain why Democrats now say the Supreme Court should remain divided in the same way—four justices appointed by Democratic presidents, four by Republicans—for the rest of Trump’s term. “I promise you that we will be united against any Supreme Court nominee that President Trump puts up,” said Democratic Senator Dianne Feinstein of California. “I promise you.”

Liberal commentators agree. “It would be completely decent, honorable and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee Trump names,’’ said the Americans for a Progressive Judiciary, a liberal think tank. “If you truly believe that a particular nominee would wreak havoc on America, why not do everything you can to stop him?”

I’m sure these words of principle enrage conservatives. I’m sure they believe that the Democrats' allowing the high court to continue in its current hobbled state throughout Trump’s term is un-American and destructive to our country. In fact, these statements have already been roundly condemned on Fox News, with numerous pundits ripping at the Democratic Party (or Democrat Party) for allowing its thirst for partisan advantage to blind it to our constitutional principles. And if you’re a conservative, I hope you seethe at those statements.

Why? Because it exposes your grotesque hypocrisy.

You see, I lied. Feinstein never said anything about the Democrats refusing to confirm any Trump nominee for the next four years—that was actually Republican Senator John McCain of Arizona, in statements he made when most of the political world believed former Secretary of State Hillary Clinton was going to be president. As for the comment from the Americans for a Progressive Judiciary? I made up the name; as far as I can tell, no such organization exists. Instead, I was quoting the conservative publication The Federalist, which, once again, was writing at a time when almost no one believed Trump would win, to justify engaging in a blanket refusal to ever confirm any Clinton nominee.

Now if you’re a conservative who was angered by those statements when you thought they came from Democrats—and now that you know they were uttered by your partisan brethren, you’re scrambling to justify them—face facts: You are lying and self-deluded.

02_01_kurt_gorsuch_02 Supreme Court nominee Judge Neil Gorsuch walks with former New Hampshire Senator Kelly Ayotte and Colorado Senator Cory Gardner before a meeting on Capitol Hill on February 1. Joshua Roberts/Reuters

With the elevation of Samuel Alito to the Supreme Court (“the worst justice in history”©, as I’ve previously written), whose rulings often contain the same blatant hoop-jumping demonstrated by Grassley in justifying pure partisanship as a matter of constitutional principle, I gave up on the idea of my once-beloved Supreme Court as a deliberative body in which legal interpretations are weighted against constitutional precepts and precedent. Instead, I now accept it is just an apparatus of political parties.

I always know how Alito will rule; his decisions are amusing because I enjoy trying to predict what assertions of nonexistent fact he will employ in his arrogant effort to reach the outcome he desires. None of the other justices—conservative or liberal, past or present—are as flagrant in their use of the court to impose their political beliefs on the rest of us. At the very least, until Alito is gone, the Supreme Court is a partisan joke deserving of no respect, which for me is a horrifying thing that I could never have imagined I would say.

No doubt, Gorsuch would be a better judge than Alito (and so would my dog). Like Garland, he would bring some desperately needed jurisprudential intelligence, fairness and consistency to the court, regardless of what anyone may think of his decisions on a political basis. But none of that matters. There is a country to save.

The Republicans cannot be allowed to reap the rewards of unprincipled obstructionism that sets a precedent that will destroy the last remnant of our country’s constitutional credibility. They cannot wing it—saying that a court doesn’t have enough work to justify the number of judges it is supposed to have, or that a Democrat should not be allowed to have a judicial nominee confirmed in a fourth year or first year or a full term of a presidency—and just make up rules as they go along, undermining everything this country has stood for just to grab some short-term gain. There are no principles anymore; just as with Alito’s decisions, there are desired outcomes and an infinite number of rationalizations to help anti-American conservatives get there.

So what should the Democrats do? Fight. Recognize the nature of the other party. There is no longer reason; there is no longer fidelity to our history or to the founders’ intents; there is no longer compromise. Republicans cannot be allowed to benefit from their efforts to undermine the intent of the framers of our Constitution. (To give you an idea of how bad this could become if Democrats don’t fight, think of this: That conservative commentator writing for The Federalist who was justifying obstructing every Clinton nominee argued that Republicans, as an option, could constitutionally just let the Supreme Court die if it could be done without paying too high a political price. There is no limit to how far the Republicans may go.)

Will the Republicans use the “nuclear option,” which will allow them to override any attempt at a filibuster, making it so that a Supreme Court nominee needs only a majority vote? Let them. If Democratic senators won’t throw everything into stopping this nomination, regardless of the price, then they may as well pack it up and go home, because they have cowered and cringed their way into a government where governance has died, where party is more important than country.

The end game: Force Trump to re-nominate Garland. Filibuster every nominee until he does. I have no illusions that the Senate would accept Garland; the Republicans still have the majority. Then Trump will come in with another nominee, almost certainly Gorsuch. Yes, even under that scenario, the Republicans will gain a seat on the court; they would have anyway, even if they had considered Garland during the Obama administration, because the GOP had the Senate majority then too and would have voted him down. (Before the election, Democrats knew the price of a Trump victory could be that the Republicans would get to name the next Supreme Court justice, and enough of the anti-Clinton types chose to sit out or cast their vote for someone who could not win anyway. They have relinquished the right to object.)  

So even though Garland would not have won a Senate confirmation vote, a precedent needs to be established: The Senate’s confirmation responsibilities under the Constitution are not a joke, are not something where absurd rationalizations that pass for smarts on Fox News can be used to circumvent history and precedent. Nominees must be given hearings and votes. And yes, if that means letting the Republicans blow up the filibuster, let them do it.

Then, when a Democratic president is in office, the Democrats control the Senate, and there is no filibuster, show the Republicans a real exercise in raw power: revive Franklin D. Roosevelt’s plan to pack the Supreme Court and fill it with the most liberal justices around. If the Republicans insist on turning the judiciary into a political plaything, play the roughest game of hardball they have ever seen.