Wednesday, February 01, 2017
Can the Gorsuch nomination restore dignity to the Supreme Court process?
We simply don't have a similar institution in Britain. Our own relatively new Supreme Court - a creation of Tony Blair's - received its first real bit of headline publicity with its deliberations on triggering Article 50, and acquitted itself perfectly soundly, providing a new and important constitutional document in the process. But British citizens are unlikely to get too exercised by the UK's deliberately down-played Supreme Court.
It's a whole different matter in the United States. The very pillars of the Court breathe remote majesty and authority through their brilliant white marbled stone. The nine robed justices play such a significant role in the legal ante-room of American politics that they were once even charged with deciding the president of the United States. It is said that candidate Trump paid most attention to the poll that said the Supreme Court was the single most important issue to them.
After eleven days of perhaps deliberately provoked chaos and division, President Trump's Supreme Court nomination looks positively statesmanlike and actually presidential. The originalist nominee, Neil Gorsuch, is respected across the spectrum and is clearly a fine jurist with the capability of producing lucid, deeply thought out rulings. He is no right-wing head-banger. He speaks honeyed words when defending the law and the principle of an independent judiciary. Even if you disagree with his broad legal philosophy, you get the impression that the integrity of the Court is safe in the hands of this man, this chosen successor to Justice Scalia.
Of course that isn't quite how this is playing, and the Republicans have only themselves to blame for that. The unprecedented action of Senate Majority Leader McConnell and Judiciary Chairman Grassley has undeniably poisoned the atmosphere of Supreme Court nominations. For Democrats, this is the "stolen" seat. The one that Republicans held back when President Obama still had nearly a quarter of his last term to run. If Neil Gorsuch is being garlanded with praise by Republicans and their ilk, is being spoken of as a great jurist, a man with previous support across the political spectrum, well then so was Merrick Garland similarly presented back in March of 2016.
This National Review article by Jim Geraghty is pretty typical of the paeans of praise to Gorsuch and damnation to oppositional Democrats currently being generated (this one too, from American Greatness, lays out the Republican case pretty clearly). How stupid of the Democrats, how narrow-minded of them to want to oppose such a universally loved jurist as Judge Gorsuch. But nearly everything in this article could have been written by a Democrat about Judge Garland too. The Supreme Court process has become so politicised that neither side can give credence to any suggestion or nomination from the other.
But, you know, this was also Justice Scalia's seat. Gorsuch's appointment simply maintains the old balance of the Court, with a man who undoubtedly deserves his nomination. Democrats may be wise to row back from a dust-up over this one. They may still be fuming over the Garland obstruction, but fighting Gorsuch would seem to be the wrong battle this time. And maybe we should remind Democrats that they had their scalp long ago, back in 1987 when they successfully prevented Robert Bork's nomination. The Republicans are simply catching up.
Gorsuch should be given tough questioning by the Judiciary Committee Democrats, but they might be willing to give the Supreme Court itself a chance to recover some much needed dignity by not invoking a filibuster here. By submitting to Gorsuch's nomination, the Democrats can keep their moral high ground, leave the Court where it was before Scalia's death, and most importantly keep their more lethal ammunition in reserve for the nomination that truly matters. The one to replace the first liberal to step down.
Despite himself, Trump has played this one well. After an exhausting eleven days, plenty of people would thank the Democrats for not picking an unnecessary fight.