BY SUSAN ESTRICH
Judge Neil Gorsuch would never have been appointed to the Supreme Court by Hillary Clinton. He’s way too conservative.
But unfortunately for those of us who would prefer a more liberal choice – such as Merrick Garland, who never got a confirmation vote – Hillary Clinton didn’t win the election. Donald Trump did. And that means he gets to appoint someone who agrees with him to the Supreme Court, not someone who agrees with me and my Democratic friends.
And from that standpoint, you could do a whole lot worse than Neil Gorsuch.
For starters, Gorsuch is very, very smart. Very smart people who make it to the high court often develop into justices who are willing to take on the president and Congress in order to enforce the Constitution. Earl Warren, the most liberal chief justice in recent history, was appointed by Republican President Dwight Eisenhower. Justice William Brennan, the most liberal justice on the court in the 1970s, was also an Eisenhower appointee. So was my old boss, Justice John Paul Stevens, whose nomination was opposed by the National Organization for Women, then the most powerful women’s group in the country. By the time he retired at the age of 90, he was also considered the most liberal justice on the court. And don’t forget Hugo Black, who was confirmed despite alleged ties to the Klan, and went on to be a respected, and very liberal, member of the court.
Moreover, while I did not have Gorsuch as a student, my former colleagues who did describe a young man who was a conservative, not an ideological hard-liner like the man he will replace, Justice Antonin Scalia. One of his former professors told me that Gorsuch is more like Chief Justice John Roberts, who voted to uphold ObamaCare. Gorsuch was conservative as a student, but not an angry conservative. He listened; he was thoughtful and respected others’ points of view.
Indeed, though he was appointed by President Trump, that did not stop Judge Gorsuch from defending judiciary independence even as Trump was attacking the federal judiciary for finding his executive order on immigration to be unconstitutional.
In short, in Gorsuch, you have a very smart conservative who is willing to stand up to the president who appointed him.
So, why are the Democrats in the Senate determined to filibuster his nomination? That’s easy. The ideological divide has hardened under President Trump. Democrats are the opposition party. In that context, trying to block a nominee appointed by the administration makes sense – unless you actually consider the consequences.
Having resorted to the “nuclear option” [i.e., requiring a simple majority to confirm most nominees by the president] when they controlled the Senate and the Republicans were the opposition party, Senate Democrats must surely recognize that the most likely result of a filibuster: Republicans will eliminate the exception the Democrats left in place for Supreme Court nominees. The Republicans need 60 votes to stop a filibuster, but they only need 51 votes to eliminate the right to filibuster Supreme Court nominees.
And even if they don’t, even if the Democrats succeed in filibustering Gorsuch, will we get a “better” nominee next time around? Almost surely not. They will get someone who is not as smart or independent and is much more ideological than Neil Gorsuch; someone who would defend the president’s attacks on the judiciary and eagerly try to reverse Roe v. Wade. And then Republicans will confirm that nominee by 51 votes.
– Susan Estrich’s columns appear regularly in The Oklahoma Observer