Judge Neil M. Gorsuch is eminently qualified to sit on the U.S. Supreme Court. All other considerations amount to little more than politics.
Gorsuch’s nomination to the court by President Donald Trump, in an uncharacteristic moment of sound judgment, deserves confirmation by Senate Republicans and Democrats alike.
The centuries-old standard for Senate confirmation to the court has not been whether a nominee will advance a particular senator’s political agenda, but whether the nominee is qualified. That standard has allowed liberal Democrats to vote to confirm conservative justices such as Clarence Thomas and Samuel Alito, and allowed conservative Republicans to vote to confirm liberal justices such as Sonia Sotomayor and Elena Kagan.
Once that standard goes by the wayside, the Supreme Court is in danger of devolving into a collection of nine partisan hacks.
Republicans in the Senate can’t really complain if it does. They started dragging our nation down this sorry road last year when they refused even to consider President Barack Obama’s choice for the court, the superbly qualified Merrick Garland. By all rights, Judge Garland should be on the court today, filling the seat that almost certainly now will go to Gorsuch.
But if Senate Democrats attempt to filibuster Gorsuch’s nomination, either as payback for Garland or to deny Trump a victory, they will further politicize the one branch of government that must remain above all that. Gorsuch likely will be elevated to the court all the same; but to make that happen, Senate Republicans will eliminate the filibuster and confirm Gorsuch by a simple all-GOP majority vote, rather than by a bipartisan 60 votes.
If the Senate resorts to this so-called nuclear option, it will set a precedent for all future high court confirmations, a precedent that will cut left or right depending on which party is in control. A Supreme Court made up of justices who have been confirmed by simple majorities is sure to become even more ideologically polarized.
Senate Democratic leader Chuck Schumer has vowed to lead a filibuster. That might be defensible if Gorsuch were an obvious extremist, far outside the mainstream in his legal thinking, but he is not. On the contrary, Gorsuch’s record as a judge and his careful comments before the Senate Judiciary Committee reveal a jurist who is intellectually conservative and committed to an originalist interpretation of the Constitution, but not unthinking — or uncaring.
“It matters not that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were,” Gorsuch said in one of his more memorable comments before the committee. “The law they drafted promises equal protection of the laws. That’s what they wrote….. and equal protection of the laws does not mean separate in advancing one particular race or gender. It means equal.”
Truth to be told, it is impossible to know how a Justice Gorsuch might rule on many of the most contentious issues of our times, from religious freedom to money in politics to transgender rights to abortion. Our betting is that he often would disappoint this editorial page.
But we are at a loss to understand what Schumer and other Gorsuch opponents expect to accomplish with a filibuster, except to increase the dysfunction in Washington. We wish they would smarten up and hold the filibuster in reserve for a more objectionable nominee down the line. If they think they’re going to shove aside Gorsuch for a more liberal nominee, they’ve got a long wait.
Or is that the plan? Is Schumer hoping to block any Trump nomination to the Supreme Court until after the 2018 elections — a year and a half from now — when Democrats might again control the Senate? If so, they are behaving as reprehensibly as the Republicans who blocked Garland’s confirmation while waiting for the election of a Republican president.
In Neil Gorsuch we see a future Supreme Court justice with whom we often may disagree, but in whose personal integrity and respect for the rule of law — applied to all — we have no doubt. We see a justice who will consider each case on its merits, not according to politics, with an appreciation for legal precedent.
It should surprise nobody that the American Bar Association, which leans left, has given Gorsuch its highest rating, or that he has been enthusiastically endorsed by his closest former colleagues, both Republicans and Democrats, and by dozens of former classmates at Harvard Law School.
Best of all, given the times, we see in Gorsuch a justice who is prepared to say no to a president who strays from the law and the Constitution.
“No man is above the law,” the judge said repeatedly during his confirmation hearing.
He was making a point, loud and clear, well aware of what lies ahead.
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