It's Not About Judge Gorsuch

by Michael Dorf

In the coming days and weeks, my co-bloggers and/or I will undoubtedly have a fair bit to say about Judge Gorsuch's record and what it likely portends for his tenure on the Supreme Court. That is inevitable. This is a blog about law, my own special focus is constitutional law, which is an interest of most of my co-bloggers as well, and a Supreme Court nomination is undoubtedly a big deal.

It is also true that I regard Judge Gorsuch's confirmation as essentially unstoppable. Democrats can filibuster and perhaps they will successfully maintain party discipline, but a world in which Senate Democrats have that kind of party discipline is almost certainly a world in which Republicans invoke the "nuclear option" and use the same mechanism to invalidate the cloture rule for Supreme Court nominees that Democrats used a few years ago to invalidate it for executive branch and lower federal court nominees.

Accordingly, as the proprietor of a quasi-news site, I do not intend, nor would I ask my co-bloggers, to sit on the sidelines during debates over Judge Gorsuch's qualifications, record, and likely voting pattern as a SCOTUS justice. Having said that, however, I want my first foray into this discussion to be a disclaimer: Nothing that you will read here about the merits of Judge Gorsuch as a SCOTUS nominee should be taken as recognizing the legitimacy of his nomination. The seat to which Judge Gorsuch has been nominated rightfully belongs to Judge Merrick Garland, as Dawn Johnsen explains on Slate.

That is a judgment that has nothing to do with Judge Gorsuch. Had Justice Scalia passed away after the election or even in the month or two right before the election, I would have expected that in the normal course of things, a Republican president with a Republican majority in the Senate would nominate a conservative. Judge Gorsuch appears to be eminently well qualified as a matter of professional competence, albeit much too conservative for my taste--by one measure more conservative than Justice Scalia was. However, because Democrats (as well as Republicans) have traditionally held a variety of views on when one ought to oppose a nominee on the basis of ideology alone, as well as on when one ought to attempt to filibuster a nominee on that basis, I would still have expected a Republican president to be able to get 60 votes to hold a vote and then a majority to confirm someone like Gorsuch.

That would have been true pretty much regardless of who the Republican president was. During his first eleven days in office, President Trump has already shown that he is no ordinary Republican, but in nominating Judge Gorsuch to the Supreme Court he has acted exactly the way I would have expected any Republican president to act. This is not a Trumpian issue. It's a Republican issue.

Hence, I believe that the Democrats will be justified in filibustering Judge Gorsuch, even if the effort proves futile. Whether they ought to do so strikes me as an entirely tactical question at this point. Will forcing the issue do more to fire up the Democratic base or the GOP base? How will it play with voters in states in which Democratic Senators are up for re-election in 2018? Will those voters remember or care? I don't pretend to know the answers to these questions.

I do know that the system is broken. We have or will in any event soon have a system in which Supreme Court vacancies that arise when the Senate and the presidency are controlled by different parties will remain vacant until the same party controls both. That, in turn, will increasingly lead to a very polarized Court, as each party will nominate and confirm strongly conservative or strongly liberal justices when it can, because there is no reason not to. In this prisoner's dilemma, any other course is a sucker's game.

There is, to be sure, a sense in which Democrats share responsibility for the current state of affairs. Democrats did more than Republicans to make ideology a standard ground for rejecting a professionally qualified nominee. And Democrats under Harry Reid exercised the nuclear option--although they did so in response to new levels of obstructionism by Republicans. But who "started it" and who is more to blame is by now mostly beside the point. If it were possible for Democrats and Republicans to reach some sort of binding agreement whereby old norms of deference to the president were restored and strengthened, there might be something to be said for that approach, but we are nowhere near anything like that now. For Democrats to treat the Gorsuch nomination as a "normal" nomination to which a norm of deference to the president applies simply because they think that is a norm that both parties ought to respect in a perfect world right after and as a direct result of the Republicans' norm breaking with respect to Judge Garland would be to be played for suckers.