First, a sigh of relief. However conservative he may seem to progressives, President Trump’s nominee for the U.S. Supreme Court, Neil M. Gorsuch, fits within the broad outlines of American political thought. That is to say, he’s no Steve Bannon, the presidential guru who trails more than a whiff of white supremacist tendencies.
Gorsuch, a member of the Denver-based U.S. Court of Appeals for the 10th Circuit, is a generally well-regarded jurist who is being likened to the man he would succeed, the late Justice Antonin Scalia. There is a fair argument to be made that the nomination is plausible and of the sort that any Republican president might have made, especially when the party also controls the Senate.
Nevertheless, much remains to be determined about Gorsuch before the Senate, or anyone else, should decide whether he has the appropriate outlook and temperament to serve on the nation’s highest court. That’s the purpose of the Senate constitutional requirement to advise and consent; neither rejection nor approval should be automatic, even though Trump is already instructing the coequal branch of the Senate to “go nuclear” if Democrats filibuster the nomination.
The Senate, generally composed of adults, should make up its own mind about Gorsuch and, only if it becomes necessary, determine if it wants to accept the potentially significant consequences of abolishing the filibuster.
Among the issues the Senate should – but probably won’t – consider is the need to depoliticize the Supreme Court – that is, to move it back toward centrist, narrowly drawn decisions. Too often, from its 1973 ruling in Roe v. Wade to its more recent rulings on campaign finance, it has imposed its will, rather than operating in a more – yes – conservative way by keeping its opinions narrowly focused.
It’s an important matter in a country that feels as though it is pulling apart at the seams, but that tearing also describes the challenges in adjusting the court’s approach to jurisprudence. The Senate – and the House, for that matter – is about as divided and angry as much of the rest of the country, and it functions as gatekeeper of the court. Too many senators want justices they believe will be either adamantly for or dead-set against rulings such as Roe v. Wade. Ultimately, that rips at the nation’s fraying fabric.
Still, there are legitimate questions that senators should ask of Gorsuch, including his opinion of the religious test Trump evidently applied in producing his travel ban targeting mostly Muslim nations and his reasoning in the Hobby Lobby case over a federal birth control requirement. His opinion in that controversial case granted a corporation the same rights as an individual.
Trump, himself, made a couple of interesting observations regarding his nominee – one persuasive, the other not so much. On the former, he noted that Gorsuch was approved to the appellate court 10 years ago without objection. That’s not insignificant.
But the president also said he wished that “both Democrats and Republicans can come together for once for the good of the country.” Anyone might wish for that, but, throughout his campaign and during the early days of his presidency, Trump has set a tone that is conducive more to conflict than to collegiality. That, also, is not insignificant.
Some Democrats have threatened to filibuster the nomination, in part out of anger over Republicans’ partisan refusal to consider former President Barack Obama’s nomination of Merrick Garland to succeed Scalia.
To meet their obligation to the country, senators should try this approach: Do their job. Examine the nominee. Be skeptical. Be fair. Then decide how to proceed. And turn to the filibuster or “nuclear option” only after considering all of the issues – and all of the ramifications.