Senators must stop the Gorsuch train wreck before it ruins the Supreme Court
The word "nuclear" doesn't quite do justice to what appears to lie ahead for Judge Neil M. Gorsuch's nomination to serve on the U.S. Supreme Court. It isn't suddenly blowing up — as would happen with the dropping of a bomb, nuclear or otherwise — so much as it's been a long, drawn-out train wreck that is destined to forever harm everything and everyone associated with it.
By now, most Americans have a pretty strong sense of what lies ahead. The Senate Judiciary Committee's Monday afternoon party-line approval of the nominee to fill the vacancy left by the death of Justice Antonin Scalia nearly 14 months ago means it's now up to the full Senate to decide his fate. Democrats, minus a handful of exceptions, have vowed not only to oppose Judge Gorsuch but to filibuster the nominee. Senate Majority Leader Mitch McConnell has, in turn, promised to change the Senate rules to allow Mr. Gorsuch to be approved on a simple majority vote.
This scenario portends two ugly precedents. No nominee to serve as an associate justice on the Supreme Court has ever been filibustered (Justice Abe Fortas was successfully filibustered from being promoted to chief justice in 1968), and the Senate has never pulled out the "nuclear option" to break a Supreme Court filibuster. Thus, the car wreck is not Judge Gorsuch landing on the nation's highest court (he may be a hard-right conservative, but he's surely not unqualified for the job) but the precedent that is being set. Henceforth, a majority vote is all the Senate needs to approve a Supreme Court nominee; the days of the 60-vote majority appear to be gone.
Thus, the politicization of the judiciary will be complete. Gone will be the desire to nominate judges of broad experience and temperament or even those whose views on controversial issues are uncertain or untested. Now, if a political party has control of both the Senate and the White House, there will be no reason not to cater exclusively to special interests and the most extreme voices of your particular side and their various "litmus test" standards, let alone tolerate any criticism voiced by the opposing party. In these increasingly politically polarized times, the Senate is poised to abandon one of its most important functions — seriously and cautiously deliberating over the qualifications of a Supreme Court justice.
And who is standing up for the principle? Hardly a soul. Senate Minority Leader Chuck Schumer has likened the Republicans to a "cat on the top of a tree" unwilling to back down and prepared to take a self-destructive leap. Senator McConnell has already pointed to the Democrats as being at fault if the nuclear option is let loose. Neither is correct because both are at fault. The Republicans' choice to block President Barack Obama's nominee, Judge Merrick Garland, for 293 days was an especially egregious abuse of the process. But filibustering Judge Gorsuch, a well-qualified appellate court judge — if vague and evasive during his hearings — is not exactly a reasonable, non-partisan choice from a party where blocking anything the detested Donald Trump wants is sure to ingratiate Senate Democrats with core voters.
And the injuries and political machinations go on and on. Republicans say this car crash started four years ago with then-Sen. Majority Leader Harry Reid's decision to eliminate filibusters for most nominees — except for those headed to the Supreme Court. Democrats can counter that a near-nuclear option wouldn't have been needed except GOP senators were invoking the filibuster so frequently (and to such a historic level of obstruction) that President Obama simply could not get appeals court judges seated.
Is this really the outcome that both sides want? From here, it's a short walk to the day when whichever party controls the Senate will simply insist the president choose from its list of acceptable nominees. Or hey, why bother with a list? Why not have the caucus select one name and tell the president to put up or shut up whenever there's a Supreme Court opening? If Hillary Clinton had been elected president last year, Sen. Ted Cruz had already promised to oppose whomever she nominated for the length of her term in office.
If neither side will back down unilaterally, then both ought to find a face-saving way to back down in a bipartisan fashion. Let Democrats agree not to filibuster Judge Gorsuch if Republicans agree not to invoke the nuclear option for the remainder of the term, for example. Partisans won't like it. Special interests won't like it. But it's the right thing to do if the nation wants a thoughtful and independent Supreme Court that's been properly vetted and not a bunch of highly partisan choices "rubber stamped," as veteran Sen. Patrick J. Leahy has bemoaned this state of affairs, by the Senate.