Trying to Block Gorsuch is a Lost Cause

BY LAUREN JOHNSTON Judge Neil Gorsuch delivers remarks after being nominated by President Donald Trump to the Supreme Court with his wife Marie Louise Gorshuch during a ceremony in the East Room of the White House on Jan. 31, 2017. (Alex Wong / Getty Images)

On January 31, President Donald Trump named his pick to fill the Supreme Court vacancy left by Antonin Scalia almost a year ago. Mr. Trump’s choice is Neil Gorsuch, a 49-year-old judge who currently sits on the 10th U.S. Circuit Court of Appeals in Denver. With his typical eloquence, Mr. Trump has claimed that Gorsuch is “as good as it gets.” Whether or not this is true, the nominee will face steep scrutiny from Democrats as he seeks confirmation.

Gorsuch is a constitutionalist, meaning that his legal philosophy is to adhere to its original meaning, rather than seek to modernize the interpretation of the constitution.  He leans towards the right, tends to favor businesses (he agrees with the ruling on SEC v. Citizens United that corporations are citizens), and, from his position on doctor-assisted suicide, it can be inferred that he is a pro-life nominee. Therefore, his appointment would not significantly change the current composition of the court; he would comfortably fill Antonin Scalia’s role, if not exactly, at least approximately.

There is no doubt Gorsuch is qualified for the position. He studied law at Harvard, completed his doctorate at Oxford, and clerked for two Supreme Court justices, including Justice Anthony Kennedy, the main swing voter on the court today, before serving as justice for 10 years on the D.C. Circuit Court of Appeals. Gorsuch and Justice Kennedy have a strong personal relationship, and Justice Kennedy holds Gorsuch in high esteem. What this relationship means for the court is unclear. Some argue that Gorsuch could push Kennedy to the right; others argue that Gorsuch’s appointment could convince Kennedy to retire, believing the court would be left in good hands.

But the real dilemma is more political than it is personal. The Democratic Party has a difficult decision ahead of them: whether to fight Gorsuch’s nomination or concede it. There are many reasons they should fight. The first is to rebel against Mr. Trump on principle, but the more significant reason is to retaliate against the Republicans’ stonewalling of Obama’s Supreme Court pick, Merrick Garland. Republicans blocked Merrick Garland in an unprecedented and appalling power-grab, and now whomever Mr. Trump nominates will be clouded by illegitimacy. Moreover, Democrats need to consider whether Gorsuch’s placement on the court will impede liberal policies for years to come.

Regardless, Democrats have a significant disadvantage going into this battle. Without a filibuster, Gorsuch only needs a simple majority (51 votes) to be approved. There are currently 52 republicans, 46 democrats and two independents in the Senate.  But if the Democrats filibuster, then Gorsuch would need a supermajority of 60 votes to join the court, requiring eight democrats or independents to break from their party. It then gets more complicated. If the Democrats filibuster, then the Republicans can use the so-called “nuclear option” – a tactic Democrats used in 2013 to clear away filibusters against other appointed offices – to abolish the filibuster against Supreme Court nominations, and thus clear the way for a simple majority vote.

Ultimately, the Democrats have every right to stonewall Gorsuch in protest against the seat that should have gone to Merrick Garland, but it may not be the smartest decision politically. They would likely be better off saving the fight for later, such as if Mr. Trump gets the opportunity to choose a second Supreme Court nominee during his term, who may be more conservative. Of course, even if the Democrats wait, the filibuster option might have already been cleared away, and even if it is not, the “nuclear option” will remain and still be a threat if Republicans continue to control the Senate.

Gorsuch is not a liberal dream, but he is centrist with a reputable character, and certainly not a far-right conservative firebrand. If Democrats had the power to block his appointment, it would be the right thing to do. Obama was elected for a second term and he appointed a left-of-center justice according to the mandate of the people, and the Republican party overreached their legislative powers by blocking Garland’s appointment. Unfortunately, since the Democrats have their hands tied, they are better off scrutinizing Gorsuch as best they can and hoping that nobody else vacates the court until the Democrats have gained control of the Senate or hold the presidency again.