President Donald Trump nominated Neil Gorsuch for a seat on the U.S. Supreme Court that should have been filled last year.
On the very day that Justice Antonin Scalia died — Feb. 13, 2016 — Senate Majority Leader Mitch McConnell vowed that no one put forward by then-President Barack Obama would be given a confirmation hearing or a vote. He kept his word.
That was unprecedented obstructionism, but there was worse to come. Republican U.S. Sen. Richard Burr of North Carolina said during the campaign that, if Democrat Hillary Clinton were elected, he would do everything he could to block her from filling Supreme Court vacancies during her entire term. Other Republicans made similar statements. We can believe that’s exactly what would have happened.
So it’s understandable that some Senate Democrats want to give Trump the same treatment and use the filibuster to deny Gorsuch a vote. They would just be following the new rule book written by the Republicans.
They should do no such thing. That rule book is a formula for dysfunction and endless partisan gridlock. It is contrary to the spirit of our Constitution and ought to be discarded forever. The Democrats should do the right and responsible thing, which is to examine Gorsuch’s credentials and work product, ask him hard questions, listen carefully to his answers and then vote whether or not to approve his nomination based on his qualifications.
Gorsuch is a highly educated and experienced federal appellate judge.
Like most of the sitting justices, he is a product of the Ivy League — Columbia undergrad and Harvard law. He also studied at Oxford in England.
He is conservative but reportedly not outside the mainstream of American jurisprudence. He clerked for Justice Anthony Kennedy, who is the swing vote in many key cases. After his introduction by Trump Tuesday evening, he said, “A judge who likes every outcome he reaches is very likely a bad judge.” That means he attempts to interpret the law and Constitution faithfully, whether the result fits his personal beliefs or not.
Trump promised to nominate a judge in the mold of Scalia. If Gorsuch meets that description, his decisions won’t always please Trump, whose impulses often defy constitutional principles.
For example, Trump believes flag-burners should be jailed and stripped of their U.S. citizenship. Scalia joined two rulings that found flag-burning, though offensive, is protected by the First Amendment. We hope Gorsuch would agree.
Trump’s refugee ban makes distinctions based on religion. We don’t think Scalia would have approved and expect Gorsuch to join a unanimous court in rejecting Trump’s policy, if a case comes before it.
As legal experts pore through Gorsuch’s record, specific objections will come up and give reason for some senators to oppose him. But they must know that Trump could have done much worse, appointing an unqualified political partisan. Gorsuch seems to be respected and respectable. In the long run, he may prove to be more like Kennedy and Chief Justice John Roberts than Justices Clarence Thomas and Samuel Alito. Many justices gravitate toward the center over time.
Partisan obstructionism would be no better this year than it was last year.
— The Greensboro News & Record