Judge Not: Neil Gorsuch Doesn’t Deserve to Be Confirmed to the Supreme Court

The activists pushing Senate Democrats to resist Donald Trump’s nominee for the Supreme Court seat Republicans robbed from Barack Obama recognize that Neil Gorsuch has no business replacing the late Antonin Scalia. Will Senate Democrats come to the same conclusion?

The case against confirming Gorsuch is the same as the case against confirming Robert Bork three decades ago: the man holds fast to a fringe ideology that will disenfranchise and discriminate against anyone who is not a member of the economic elite. Gorsuch simply cannot be trusted to apply the law fairly and objectively.

In her 2009 Scalia biography American Original, Joan Biskupic discussed the Reagan administration’s prime motive for nominating Scalia to the High Court:

Foremost in the minds of [Reagan’s advisers] was this opportunity to shift the Court’s direction. [Scalia’s] appointment could help project components of the Reagan revolution far into the future. Reagan’s [1981] appointment of [Sandra Day] O’Connor had fulfilled a campaign promise to place a woman on the Court. This new nomination could be more of a reflection of Reagan’s quest for a remade judiciary…

Patrick Buchanan, the former Nixon speechwriter and TV commentator whom [White House Chief of Staff] Don Regan had brought in to be communications director at the White House, had written a memo touting Scalia as a major contributor to the legal legacy Reagan hoped to leave…Buchanan had written in his Scalia memo, “The stakes here are immense–whether or not this President can leave behind a Supreme Court that will carry forward the ideas of the Reagan Revolution–into the 21st century.”

Just as Scalia was the full embodiment of the Reagan vision on the Supreme Court, so too would Gorsuch fully embody the Trump vision, ensuring unequal justice under law for anyone not in Trump’s rarefied financial air. Gorsuch would move the legal right closer to achieving the longstanding goal of removing all traces of what right-wingers regard as progressive legal activism from the Court. Of course, what right-wingers regard as progressive legal activism, the rest of us call equality.

There is nothing immoral or dishonest about Democratic Senators factoring politics into their decision to resist Gorsuch (if they choose to do so, that is). The raw reality is that on the High Court, Gorsuch would, as a committed right-wing ideologue, screw over members of the Democratic Party’s constituency. Why would any Democratic Senator collaborate in a scheme to wound their own party’s base?

Analyzing the Democratic Party’s options, NPR’s Nina Totenberg observes:

In the unlikely event that Democrats could block Gorsuch with a filibuster, the Republican leadership would certainly exercise the so-called “nuclear option” and simply unblock the nomination by getting rid of the filibuster rule for Supreme Court nominations.

Privately, some Democrats would rather wave Gorsuch through this time without a filibuster, given that he is nominated to fill a seat previously occupied by a the similarly conservative Justice Antonin Scalia. These Democrats would rather save the filibuster for if there is a second Supreme Court vacancy during the Trump administration, threatening to fill a seat now occupied by a liberal justice.

But that sort of strategic decision-making is difficult at a time when the Democratic base doesn’t see any benefit to cooperating with Trump.

If Senate Democrats “wave Gorsuch through” and let him obtain a seat the Republican Party stole, those Democrats, will, in effect, tell their own voters to get lost. Does that make sense? If the answer is “no,” shouldn’t that be the same answer Senate Democrats give to Gorsuch?

NOTE: On MSNBC last night, Sen. Richard Blumenthal (D-CT) expressed a willingness to filibuster Gorsuch.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.