By no means is Judge Neil M. Gorsuch someone we would have picked for the Supreme Court. He is a disciple of the "originalist" doctrine of the late Justice Antonin Scalia — the man whose seat he is nominated to take — which too often uses alleged fealty to the Founding Fathers' understanding of the Constitution as a cudgel to deny rights to women and minorities and to dismantle the kinds of environmental and economic regulations necessary for the functioning of a modern society. In particular, Judge Gorsuch's ruling in the Hobby Lobby case stretched the meaning of religious freedom in a way that put the rights of a corporation's owners over those of its employees. In the Little Sisters of the Poor case, he went so far as to conclude that a religious non-profit could not even be required to fill out paperwork exempting it from the Affordable Care Act's contraceptive mandate.
But we aren't the ones who get to nominate a justice to the Supreme Court, and neither are the Democrats in Congress. Their job is to determine whether he is qualified to sit on the court and whether he is philosophically and temperamentally so far outside the mainstream as to render his selection by President Donald Trump untenable.
Based on his resume — Columbia undergrad, Harvard Law School, Oxford as a Marshall Scholar, two Supreme Court clerkships and experience handling a variety of cases on a federal appellate court — qualifications shouldn't be an issue. On the temperament front, he has a strong reputation as a collegial and modest jurist who works well with those across the ideological spectrum. He certainly made a good impression in his remarks Tuesday night.
As for whether he fits within the judicial mainstream in his philosophy, Senators can and should question him carefully in individual meetings and committee hearings. In a statement Tuesday night, Sen. Ben Cardin said he intends to press Judge Gorsuch on whether he would act independently of a president who has shown real disregard for the independence of the judiciary, and whether he would "respect and embrace the civil rights and civil liberties of all Americans." That sounds about right to us. Does Judge Gorsuch believe in the equal protection of the law for all regardless of sexual orientation? What are his views on the Voting Rights Act? Does his conception of free speech extend to corporations?
Senators should pay particular attention to Judge Gorsuch's views on executive interpretation of regulations. Though he has preached the importance of judges interpreting the law rather than making it, his views on this matter lie in a blurry area. Courts have traditionally given executive agencies substantial leeway so long as their interpretations of regulations are reasonable, but Judge Gorsuch has indicated dissatisfaction with that precedent (one Justice Scalia generally defended). That could have profound impacts on environmental protections, for example, long after President Trump's nominees are the ones interpreting the regulations.
But what Democratic senators should do, above all, is to meet with Judge Gorsuch. They should question him. They should attend and participate fully in his confirmation hearings. And, unless something truly disqualifying emerges, they should allow his nomination to come to a vote.
We realize that may not be a popular position among progressives who are (rightly) stung by Republicans' outrageous refusal to allow a vote on former President Barack Obama's nomination of the arguably more qualified and certainly more moderate Judge Merrick Garland to fill Justice Scalia's seat. But we would argue it is the right thing to do, and the pragmatic one. The fact that Republican senators blithely violated more than 200 years of tradition under the Constitution and hobbled a branch of government for a year is no excuse for Democrats to do the same. At a time when democratic norms are under near constant assault from the president, someone needs to stand up for them, and with few exceptions, it's not the Republicans.
On a practical level, Democrats need to recognize that a full assault on Judge Gorsuch plays right into President Trump's hands. The only way Democrats can stop the nomination is by mounting a filibuster, but the Republicans have the votes to exercise the so-called "nuclear option" to change Senate rules to prohibit such an action against a Supreme Court nominee. They would gladly do so to put on the court a nominee who, though anathema to many progressives, is not going to look like a monster to the American public as a whole. In Judge Gorsuch, President Trump picked what appears to be the most reasonable of the options available. Democrats should be careful to keep their powder dry in case he doesn't do that next time — when the ideological balance of the court may really be at stake.