It is time to dispel, once and for all, the sheer distortion that Democrats scrutinizing the Supreme Court nomination of Judge Neil M. Gorsuch are playing vindictive, schoolyard politics.
Because the Senate is supposed to offer its advice and consent to presidential nominees, the Constitution envisions a tension when lifetime appointees to the courts are considered for confirmation. Contentiousness has occurred. From the Senate’s rejection of George Washington’s nomination of John Rutledge for chief justice through modern times, confirmation of Supreme Court appointees has been politicized.
Railroad and business interests mounted opposition to the nomination of Justice Louis Brandeis in 1916. Fifty years ago, Sen. Strom Thurmond led an ideologically based negative campaign against Thurgood Marshall, President Johnson’s nominee to the court. Three decades ago, the Senate voted resoundingly to reject the nomination of Judge Robert Bork, nominated by President Reagan.
Today, some arguments made by Bork’s defenders are renewed as the Senate weighs the Gorsuch nomination. Gorsuch is smart and has sterling qualifications, and ideology should be downplayed, we are told. Yet this approach ignores the lessons of history and the importance of public participation.
The successful campaign against Bork featured hearings that reflected the best of the democratic process. It was a majestic debate about ideas. The American people rose up in opposition to a nominee whose fringe views they did not share. Not only the nominee, but a vision, was repudiated by the Senate.
For my role in fighting Bork’s nomination then, I harbor no regrets. Today, women in America still have a constitutional right to have an abortion. Gay couples have a constitutional right to marry. Had Bork been confirmed, these rights might not exist now.
Today, Democrats voicing skepticism about the Gorsuch nomination also are accused of engaging in tit-for-tat games with Republicans. This criticism relies on a false equivalency.
President George W. Bush applied a strict ideological litmus test for his nominees and appointed ideological warriors to the bench. Nearly half of his circuit courts of appeals nominees belong to the Federalist Society, the exclusive club of lawyers who promote the interests of the wealthy and big business. More recently, the Federalist Society helped President Donald Trump make his choice of Gorsuch.
In contrast, President Obama didn’t use judicial nominations to galvanize his party’s base or to wield presidential power. He pledged to put the “confirmation wars behind us” with his first judicial nominee, Judge David Hamilton of Indiana. The judge had support from then-Republican Sen. Richard Lugar and the president of the Federalist Society’s Indiana chapter. Nonetheless, Hamilton met scathing GOP resistance on his way to confirmation, and all Republicans but Lugar voted against his confirmation.
The fight over Hamilton foreshadowed what followed. Republicans’ strategy to delegitimize Obama featured the relentless and unprecedented obstruction of his judicial nominees, including Supreme Court nominee Merrick Garland last year.
Now there is a new president who talked bluntly on the campaign trail of using litmus tests to name a successor in the mold of the late Justice Antonin Scalia. Trump proceeded to choose a man documented to be the most conservative Supreme Court nominee in 25 years.
Make no mistake, Neil Gorsuch has been driven throughout his life by an ultraconservative ideology, and some of his views are to the right of Scalia’s. His vision of America is one in which big corporations run roughshod over working people, women go without safe and accessible reproductive health care, and people with disabilities are relegated to second-class citizenship.
With the eight-member Supreme Court philosophically split, the stakes surrounding this nomination are monumental. Under these circumstances it is not only appropriate, but it is critical, that lawmakers fully examine the record of a nominee who poses a grave threat to our rights and freedoms.
Senators also will listen to the American public’s response. If some or all Senate Democrats find Gorsuch to be unqualified, it would not be a failing to do everything possible to defeat him. This exercise in democracy may be contentious, but it is neither puerile nor vengeful. It represents nothing less than Democrats’ fulfillment of their Constitutional duty and their political responsibility.