Senate Democrats may not like his judicial philosophy and may be suspicious of how he might rule on big issues. And they are justified in their anger toward their Republican colleagues who ran out the clock on Merrick Garland – Barack Obama’s well-qualified nominee for the seat vacated when Antonin Scalia died last year.
But Democrats have to ask themselves: If they filibuster and somehow manage to block Gorsuch, would the next nominee sent up by President Donald Trump be any better?
In addition, it’s past time for Republicans and Democrats alike to stop playing political games with Supreme Court nominations.
Gorsuch, a 49-year-old federal appeals court judge in Colorado, has the highest rating from the American Bar Association. During his testimony, he presented himself well. With the president bad-mouthing federal judges who ruled against his travel ban, Gorsuch made it a point to promise independence from the White House and to say the president is not above the law.
While Trump promised to appoint justices who would overturn the 1973 Roe v. Wade decision that established a right to abortion, Gorsuch repeatedly said he would respect prior rulings and said Roe was “the law of the land.” He said that Trump did not ask him about overturning Roe, and if he had, “I would have walked out the door. That’s not what judges do.”
Democrats on the Senate Judiciary Committee also pressed Gorsuch on specific issues, and he parried to avoid tipping his hand. That’s what Supreme Court nominees usually do, but it still frustrated Democrats, including Sen. Dianne Feinstein of California.
That led to contentious exchanges. When asked about a “dark money” group that doesn’t disclose its donors and is backing his nomination with a $10 million public relations campaign, Gorsuch’s reply was unsatisfying.
“It is what it is,” he said, though it’s the Supreme Court’s Citizens United decision that unleashed the floodgates for hidden campaign money.
Advocacy groups, including those called by Democrats to testify, are questioning his record on civil rights, religious freedom and gun control; his role at the Justice Department when it defended torture; and whether he would favor corporations.
They seized on a unanimous Supreme Court ruling Wednesday that autistic students have the right to an education that lets them reach their full potential, arguing that it rebuked Gorsuch, who ruled in another case that a state need only provide minimal educational progress to disabled students. Gorsuch said he was sorry for the ruling, explaining he had been bound by precedent.
Gorsuch would be the fifth justice appointed by a Republican president, presumably restoring the 5-4 conservative majority. Yet remember: Some justices haven’t ruled as expected by the presidents who appointed them.
Justice Byron White – whom Gorsuch calls his childhood hero and mentor – was appointed by Democrat John F. Kennedy in 1962, but dissented from the liberal Warren Court and joined justices later appointed by Republicans during the 1980s and 1990s. Gorsuch clerked for Justice Anthony Kennedy, a Californian appointed by Ronald Reagan who turned out to be a swing vote and a champion of gay rights.
Our hope is that Gorsuch will be the independent, nonpolitical judge he portrays himself to be.