The Question of Legitimacy With Trump’s SCOTUS Nominee

Last night Donald Trump nominated Federal Appeals Court Judge Neil Gorsuch to fill the vacancy on the Supreme Court. There are questions that can and should be raised about his history on the bench. But the overriding question is one of legitimacy. The NYT editorial board captured that in the title of their response: “Neil Gorsuch, the Nominee for a Stolen Seat.”

It’s been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding a constitutional duty that both parties have honored throughout American history and hobbling an entire branch of government for partisan gain…

In normal times, Judge Gorsuch — a widely respected and, at 49, relatively young judge with a reliably conservative voting record — would be an obvious choice for a Republican president.

These are not normal times.

Indeed they are not. The editors go on to describe the nomination of Merrick Garland last year by President Obama, a jurist who was both more moderate and more qualified than Gorsuch. If you remember, even Republican Senator Orrin Hatch pointed to Garland as a reasonable choice before Obama announced his nominee.

“[Obama] could easily name Merrick Garland, who is a fine man,” he told us, referring to the more centrist chief judge of the U.S. Court of Appeals of the District of Columbia who was considered and passed over for the two previous high court vacancies.

But, Hatch quickly added, “He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”

Obama did not, in fact, “name someone the [liberal Democratic base]” wanted. He named Merrick Garland as a show of good faith in de-politicizing the Supreme Court. But Republicans decided to play political games.

That meant nothing to Senate Republicans, who abused their power as the majority party and, within hours of Justice Scalia’s death, shut down the confirmation process for the remainder of Mr. Obama’s presidency. There would be no negotiations to release this hostage; the sole object was to hold on to the court’s conservative majority. The outrageousness of the ploy was matched only by the unlikelihood that it would succeed — until, to virtually everyone’s shock, it did.

Geoffrey Stone suggests that, given that background, confirmation of Gorsuch damages the integrity of the Court.

Anyone who cares about the proper and legitimate functioning of our American democracy must oppose Judge Gorsuch’s nomination, not because he is necessarily unqualified, but because of the undermining of our American democracy by Senate Republicans. Anyone who cares about the rule of law must oppose this nomination. If we fail to take this stand, the Senate Republicans will have succeeded in placing a justice onto our highest Court who has no business being there. They will have undermined the credibility of the Supreme Court as an institution, an institution that is critical to the functioning of our Constitution.

…every decision of the Court decided by a margin of five-to-four with Neil Gorsuch in the majority will justifiably be castigated as fundamentally illegitimate.

Let the record show that Republicans played political games with the Supreme Court and President Obama did not. They took an open seat hostage and are now pretending like that move was legitimate. Regardless of whether or not Gorsuch is qualified, a seat on the Court was stolen and that cannot go unanswered.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.