The petty political game being played over the confirmation of Judge Neil Gorsuch to the Supreme Court must end. Gorsuch is, by any measure, the best possible nominee for the job, and Democrats awkward threats to filibuster such a sound candidate for the position only threaten their own reelection chances.
Democrats may still be smarting from the Republicans refusal to hold hearings for President Obama’s nominee, Judge Merrick Garland, but Joe Biden wrote the book on such election year deferrals (see the video below).
As The New York Times notes “There has never been a successful partisan filibuster of a Supreme Court nominee.” Matt Flegenheimer writes in the Times:
In 1968, senators from both parties joined forces to block Justice Abe Fortas, whom President Lyndon B. Johnson sought to elevate to chief justice. Their obstruction — “ironically, in the middle of a presidential election year,” Mr. McConnell noted this week — centered on Mr. Johnson’s lame-duck status and ethical questions surrounding Justice Fortas, among other issues.
The Senate’s rejection in 1987 of Judge Robert H. Bork signaled a newfound focus on judicial philosophy and temperament, not merely a nominee’s qualifications, as grounds for credible opposition.
Four years later, Justice Thomas’s explosive hearings and narrow confirmation, by a vote of 52 to 48, cemented the process as inescapably political, even as the next quarter-century of Supreme Court confirmations often proceeded with a bipartisanship that has summarily vanished.
And for all the outcry over Justice Thomas, no senator chose to filibuster him.
At the Cato Institute, Ilya Shapiro and Frank Garrison allude to the idea that Gorsuch might even turn out to be a better justice than Antonin Scalia. They write:
Fundamentally, Gorsuch is like Scalia in the ways that made Scalia a legal legend—his originalism, textualism, and erudition—but unlike him by the measures that prevented even the great Nino from having the impact he could have. There are no rough edges here, no acerbic flourishes. And yet the commitment to enforcing the text of a law (not divining its purpose) is clear, the devotion to a Constitution whose structure alone protects our liberty is complete. Gorsuch combines all of the best aspects of Scalia’s work, but there is a quality to his jurisprudence that sets him apart from the late justice. Gorsuch has expressed disagreement with precedent that undermines what the Constitution demands—even as he followed it as a lower-court judge—questioning judge-made doctrines that allow government to overstep its bounds.
Read their entire report here.
Many of the same senators opposing Gorsuch today joined in his unanimous confirmation to the 10th Circuit Court of Appeals back in 2006. The idea that Gorsuch should be filibustered so Democrats can exact revenge for the GOP’s use of a policy Joe Biden pioneered is not only hypocritical, but hurts the reputation of the Supreme Court of the United States. The Senate must confirm Neil Gorsuch.
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