The Senate’s advice and consent on a proposed Supreme Court nominee is a fundamental constitutional exercise that is important, consequential and reflective of the checks and balances built into our system of government. Consideration of Supreme Court nominee Neil Gorsuch should begin with that in mind.
Gorsuch 49, is a U.S. Court of Appeals judge in Denver with a conservative track record. If confirmed, he will fill the seat of the late Justice Antonin Scalia, and in more than just his physical presence. In fact, an academic study of President Donald Trump’s list of possible court nominees put Gorsuch second for his “Scalia-ness.”
Gorsuch was in the majority of the 2013 appellate decision in Burwell v. Hobby Lobby, which expanded the right of corporations to be treated like people in allowing them to reject on religious grounds the government mandate to provide contraceptives under company health plans. The ruling was upheld by the U.S. Supreme Court.
In 2009, Gorsuch argued against a majority decision that ruled a county’s Ten Commandments display was unconstitutional. He has never written an opinion on abortion, but he has come out against euthanasia and assisted suicide, which some think may parallel his views on Roe v. Wade. In a 2005 essay, he criticized liberals for turning to the courts rather than the political process to further their agenda — omitting that conservatives do the same.
Whatever one may think of his record — and the Jewish community, it should be noted, is split on its embrace of the judge — Gorsuch deserves a fair hearing in the Senate. Some Democrats have argued that Gorsuch should receive the same treatment as Judge Merrick Garland, who was nominated to the Supreme Court by President Barack Obama last March. Senate Republicans denied Garland even a hearing in hopes that the election of a Republican president would kill the nomination.
With Trump’s election, the Republicans’ wish came to pass. But Gorsuch shouldn’t be Garland-ed. The stubborn refusal of the Senate’s Republican majority to give consideration to a highly respected and well-qualified candidate like Garland was wrong and shouldn’t be used as a reason by Democrats to interfere with consideration of another respected and highly qualified candidate. If anyone needs to be reminded: Two wrongs don’t make a right.
The Senate must consider Gorsuch on his merits and should take the time it needs to explore his record and judicial philosophy.
Should he be confirmed — by a 60-vote supermajority would be best — Gorsuch will return the conservative-liberal balance of the Supreme Court to what it was before Scalia’s death last year — the result we will almost certainly see from anyone on Trump’s current list of nominees.
The Senate’s charge to advise and consent is a serious undertaking that deserves serious action by those charged with the constitutional responsibility to get it done. It shouldn’t again fall prey to petty political gamesmanship.