Based on his credentials alone, Judge Neil Gorsuch should have had a relatively easy path to confirmation as a Supreme Court justice. He is a well-regarded, deeply experienced jurist who has clerked for two Supreme Court justices, in addition to serving a decade on the appeals court. Four long days of confirmation hearings may not have produced the most detailed answers, but they did little to indicate in any way that Gorsuch is unfit for the high court.
However, this seat carries a taint that has burdened Gorsuch with the justifiable bad feelings left from Republicans’ ruthless decision last year to deny an appointment to President Barack Obama following the death of Justice Antonin Scalia. Obama also nominated a respected jurist, Merrick Garland, whom Republicans snubbed.
Now Republicans face the distinct prospect of a filibuster from Democrats, who are increasingly confident that Gorsuch lacks the 60 votes needed to clear the procedural vote. Gorsuch has not always helped his case. When Minnesota Sen. Amy Klobuchar, a former prosecutor, attempted to suss out Gorsuch’s reasoning on a child disability ruling that was unanimously overturned by the Supreme Court in the very midst of the hearings, she got from Gorsuch snappish responses that shed little light.
Gorsuch would have been better served by being more forthcoming. That he leans conservative surprises no one. His rulings reflect a textualist and originalist bent, and he should have been unafraid to discuss the reasoning that drove them.
National Republicans and conservative interest groups also did the nominee no favors with an unseemly and repellent multimillion-dollar ad campaign that hawked the nominee like a new flavor of cereal. Gorsuch should have been allowed more dignity than that, and the resulting backlash by inflamed Democrats whose states were targeted has not helped.
Democrats may well decide to filibuster the nomination, and that is their right. Klobuchar, who has built a reputation for working with both sides, announced Tuesday that she will vote no on Gorsuch because of ongoing concerns about his judicial judgment on several topics.
Every nominee has flaws. But there are significant pluses to Gorsuch as well. His key rulings show a healthy skepticism about the reach of government and law enforcement, and he does not seem inclined to be overly deferential. He has shown keen attention to the value of procedural rules. Moreover, Trump did campaign in part on the notion that he would replace Scalia with someone like-minded. Voters chose him knowing that.
The court needs to be brought back to its full complement. Gorsuch has passed the key competency tests and should be confirmed.
Faced with a filibuster, Republicans may have little recourse other than invoking the so-called “nuclear option,” which would allow them to move the Gorsuch confirmation on a simple majority vote.
That could prove dangerous in the long run. Since the 1980s, Senate control has regularly flipped between the two parties — seven times to Democrats, nine to Republicans and two congressional sessions when it was evenly divided. No party has managed to control the Senate for more than three or four years at a time and often with thin margins.
Senate Democrats jettisoned the filibuster rule for Cabinet and lower federal court appointments in 2013, after repeated GOP filibusters of Obama appointments. They paid a price this year, when they were powerless to block Trump Cabinet nominations that passed by a bare majority.
The price for confirming Gorsuch may prove similarly high for Republicans.