Editorials

GOP went low on Garland; Dems should go high on Gorsuch

The Observer editorial board

Neil Gorsuch’s nomination to the Supreme Court has drawn nearly universal opposition from Democrats.
Neil Gorsuch’s nomination to the Supreme Court has drawn nearly universal opposition from Democrats. The Washington Post

With Democrats poised to filibuster Neil Gorsuch’s nomination to the U.S. Supreme Court, consider what the Senate votes were for a couple of the current justices, plus the man Gorsuch would replace:

Antonin Scalia, confirmed 98-0 in 1986.

Ruth Bader Ginsburg, 96-3 in 1993.

Stephen Breyer, 87-9 in 1994.

Scalia, a hero to the far right, and Ginsburg and Breyer, heroes to the far left, each joined the bench with little or no opposition. Robert Bork is the only nominee voted down by the Senate in nearly 50 years.

But confirmation fights have grown more politicized over the past decade-plus. So while Scalia, a conservative lion, was confirmed unanimously, the similarly conservative nominee to replace him will require a change in Senate rules to claim the seat. That’s due to Democrats’ knee-jerk blocking of any conservative nominee, regardless of his qualifications – such as intelligence, temperament and judicial performance.

To be sure, Gorsuch holds views that we and many Americans find wrong-headed, including his approach to worker safety and defense of President Bush’s aggressive interrogation techniques.

But Donald Trump won the presidency. Who did Democrats expect him to nominate, a liberal? What Trump nominee would they not filibuster? Democrats – indeed, all senators – have a duty to vet a high court nominee. But they also have to accept that the president is going to nominate someone with ideologically similar views.

Gorsuch’s opponents are motivated by two factors: his conservatism and their desire to deliver payback for Republicans’ reprehensible and unprecedented treatment of Barack Obama’s court nominee, Merrick Garland. Neither is reason enough to reject Gorsuch.

It’s true that the GOP’s dismissal of Garland was a travesty. That was so not because he was an Obama nominee but because Republicans so blatantly disrespected the Founding Fathers and the very reason America has always worked: We all agree to play by the rules. Even so, Democrats are hypocritical to do what they have rightly criticized Republicans for doing.

On top of it all, Democrats’ filibuster is likely to be futile. Republicans will soon employ the so-called nuclear option, allowing Gorsuch to win confirmation with 50 votes rather than 60. Democrats are offended by that, though they themselves employed it to confirm other federal judges just four years ago.

With a simple majority vote the new standard, Democrats will then be powerless to stop Trump’s next potential nominee. That could be someone much less qualified than Gorsuch, with much more influence if the nominee is replacing a justice on the left.

Alternatively, if Democrats didn’t prompt Republicans to use the nuclear option this time, they might persuade a handful of Republicans not to exercise it for an unqualified nominee next time.

All of which shows how far judicial nominations have strayed from what really should matter: Is the nominee qualified? Gorsuch is. He should be confirmed.

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