Judge Neil Gorsuch knows full well that he is attempting to take a place on the Supreme Court that should have gone to another jurist, Judge Merrick Garland. Shortly after Donald Trump nominated him, Gorsuch called Garland “out of respect.” Later, Gorsuch described Garland to be an “outstanding judge.”
Yet, Gorsuch sacrificed his own self respect last week, during his Senate Judiciary Committee confirmation hearing. The nominee refused to answer a simple question about the shameful treatment of Garland, the United States Court of Appeals for the District of Columbia Circuit judge who President Obama’s nominated to replace the late Justice Antonin Scalia, by Senate Majority Leader Mitch McConnell and the cabal of lawless partisans who corrupted the confirmation process in 2016.
The senior Democrat on the Judiciary Committee asked Gorsuch a simple question about the refusal of the Senate to even consider the Garland nomination: “Do you think he was treated fairly by this committee, yes or no?”
“Senator,” Gorsuch replied, “as I explained to you before, I can’t get involved in politics. There’s judicial canons that prevent me from doing that, and I think it would be very imprudent of judges to start commenting on political disputes between themselves, or the various branches.”
That was a legalistically-worded, yet shamefully dishonest answer. Instead of making a case for his confirmation, Gorsuch’s testimony strengthened the already powerful argument for rejecting this nomination.
Russ Feingold warns against a vote that “will tarnish the legitimacy of our highest court for generations to come.”
When Minnesota Senator Al Franken raised the issue, Gorsuch continued the charade, announcing that: “There is a reason why judges don’t clap at the State of the Union, and why I can’t even attend a political caucus in my home state to register a vote in the equivalent of a primary.”
Franken explained that, “I think you’re allowed to talk about what happened to the last guy that was nominated in your position. You’re allowed to say something without getting involved in politics. You can express an opinion on this.” The senator pointed to the legitimate constitutional concerns that had been raised by the failure of the Republican-controlled Senate to even consider the Garland nomination.
But Gorsuch steadfastly refused to respond. “Senator,” said Trump’s nominee. “I appreciate the invitation, but I know the other side has their views of this, and your side has your views of it. That, by definition, is politics. And Senator, judges have to stay outside of politics.”
True enough. Sitting judges are expected to stay out of electoral politics. But this is not about attending a caucus or writing a campaign check. This is about respect—or disrespect—for the process by which judges are nominated, how those nominations are reviewed and the standards by which they are confirmed or rejected.
Gorsuch’s refusal to acknowledge that corruption diminished him. And it further disqualified a man who—if he truly respected the constitution and the court—would have refused Trump’s offer of a tainted nomination.
“Judge Gorsuch himself should understand the precedent his nomination risks setting and not hide behind statements about the need to avoid politics,” explains former US Senator Russ Feingold, a three-term veteran of the Senate Judiciary Committee who weighed the nominations of six Supreme Court Justices during his 18 years in the Senate. Of Gorsuch, Feingold says, “He should have refused the nomination. He reportedly called Judge Garland after he was nominated. If he had truly understood what is at stake, he would have called Judge Garland to say he had turned down the nomination in solidarity—not with Judge Garland personally, but with the Supreme Court and the US Constitution that he says he holds in such high regard.”
This is not a small matter. This is the essential matter with regard to Gorsuch’s nomination to serve on the high court. The issue is not one of ideology or partisan balance. Yes, Gorsuch advanced on a classic Republican trajectory through the ranks of the 2000 Bush-Cheney campaign, the Republican National Lawyers’ Association and George W. Bush’s Department of Justice. Yes, Gorsuch has served on the United States Court of Appeals for the Tenth Circuit as a rigid conservative. And, yes, reasonable people may oppose the Gorsuch nomination because they believe he will be unable to overcome the political biases of a lifetime.
But even those who might be inclined to approve Gorsuch under difference circumstances cannot accept the illicit manner in which his nomination has been advanced. The politics of obstruction and lying that Republicans—including Donald Trump—employed to block Merrick Garland’s nomination corrupted the process. Within hours of Scalia’s death, McConnell declared that “this vacancy should not be filled until we have a new president.” Senate Republicans, with Trump cheering them on, argued that Supreme Court vacancies are simply not to be filled in presidential election years.
That was a lie. A sitting justice on the US Supreme Court, Anthony Kennedy, was confirmed in the presidential election year of 1988. Justice William Brennan Jr. joined the court in a presidential election year (1956), as did Justices Frank Murphy (1940), Benjamin Cardozo (1932) and John Clarke (1916). So, too, was Justice Louis Brandeis, a controversial nominee who was nominated, reviewed and confirmed to a place on the high court in the presidential election year of 1916—on a timeline remarkably similar to what could have happened for Garland. And that’s just the record for the century from 1916 to 2016.
By refusing to acknowledge and condemn the chicanery, and the lies, that made him a nominee made himself a part of the lies and corruption. Gorsuch should have recognized the wisdom of former Senator Feingold’s observation during the confirmation process that: “We need to stop talking about the Gorsuch nomination as if it is about a single seat on the Supreme Court. This nomination, this hearing, is about a precedent that if allowed to stand will tarnish the legitimacy of our highest court for generations to come.”
By putting his own political ambition ahead of a duty to the republic, Gorsuch extended the damage done by Republican partisans in 2016. And created a new danger. “If Republicans get away with the judicial coup they launched last year when they refused to grant Judge Merrick Garland a hearing, such a cynical political ploy could become commonplace,” says Feingold. “The GOP will apply it to lower courts. They will refuse to grant a hearing in the year before a midterm, or during the two years of a presidential race. The Supreme Court will become a permanent pawn of the GOP.”