Gorsuch and the Senate — and the ghost of Garland

In normal times, with a normal (right wing) president, Neil Gorsuch would be a fine nominee for the Supreme Court. One can disagree with his views (I do); one can disagree with the manner in which he understands “originalism” (I do, in part). But if you believe (as I do) that an ordinary President has an ordinary right to choose the political character of his or her Supreme Court nominee, then, in ordinary times, the only question should be whether the nominee is qualified. Gorsuch is at least an order of magnitude better than qualified. He is a great, if very conservative, judge.

But these are not ordinary times. And two facts in particular entitle the Senate to resist this nominee.

First, this is not an ordinary President. When Senate Republicans refused to give Obama’s nominee even a hearing, they said it was because “America” should choose the next Justice. Well, America spoke, and the vision of a far-right justice, keen on reversing the progress the Court has made on critical issues of justice and right, didn’t even get a plurality of Americans supporting it. That fact should have led this President to act with some humility, as the last President did — by nominating someone moderate in his or her views, better reflecting the actual attitudes of America. Trump didn’t, and so he lost any democratic standing to insist on his nominee. He is acting as if he has the mandate of FDR, or Reagan, or Obama. He doesn’t have that mandate. And in consequence, Senate Democrats should be entitled to demand a justice who, as the Senate Republicans insisted, better reflects America.

Second, this is not an ordinary Senate. And this is really the more important constitutional point. As the deans of Congress have long argued, the last 8 years have shown America the most partisan obstructionism by a political party in modern American history. The denial of even a hearing for Obama’s nominee was just the worst of it. There was no historical precedent at all for a Senate refusing even a hearing for a Presidential nominee — let alone a nominee from a President who won the popular vote by almost 2x the margin that the current president lost it by.

The Republicans want all that forgotten. But it should not be forgotten — lest it inspire more of the same in the future. The Senate Republicans behaved abominably; abominable behavior needs to be met with real consequences to remove the incentive for it to be repeated. And the institutional question for the Senate now — and in a sense, the constitutional question for the Senate now — is what response to that abominable behavior is necessary and appropriate.

The theorists tell us, tit for tat is probably still the best strategy. But in a political context, it won’t be easy. The Democrats need to be clear about what this fight is about — the Republicans, not Gorsuch. And to the extent there is a fight about Gorsuch, it should be in the same terms as the Republicans chose — the next justice should be one America picked, and America did not vote for another far-right justice.

Just please, don’t let this get personal with Gorsuch. We need to build a politics that treats people we disagree with decently. I don’t know Gorsuch, but from everything I’ve heard from friends who do, Neil Gorsuch is a quintessentially decent person. On this dimension, let the Democrats keep the high ground. Do not forgive Mitch McConnell his wrongs; but do not express McConnell’s wrongs in an attack on Gorsuch’s character. He must bear the burden of McConnell’s bad behavior, just as Garland did. But that burden should not reflect negatively upon him—just as it does not upon Garland.

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