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Here’s a good question for Judge Neil Gorsuch, who sat before the Senate Judiciary Committee on Monday for the first day of his confirmation hearings to be a Supreme Court justice: Why are you here?
There’s only one honest answer: “I shouldn’t be.”
Under other circumstances Judge Gorsuch would be a legitimate nominee by a Republican president. The problem is how he got to this point in the first place.
Judge Gorsuch became President Trump’s nominee only after Senate Republicans’ outrageous and unprecedented blockade of Merrick Garland, whom President Barack Obama picked to fill the same seat more than a year ago and who by all rights should long ago have been sitting where Judge Gorsuch is now — introducing his family, smiling for the flashbulbs and listening patiently as senators lecture him about the Constitution. But Senate Republicans made sure that would never happen, refusing even to meet with Judge Garland — the chief of the federal appeals court in Washington and one of the most widely respected judges in the country — let alone give him a hearing or a vote.
On Monday, they mostly acted as though they did nothing wrong and couldn’t understand why Democrats were so upset.
One exception was Senator Lindsey Graham, of South Carolina, who lamented the growing politicization of the confirmation process and warned that “what we’re doing is going to destroy the judiciary over time.” In that spirit, Mr. Graham admitted that he thought long and hard about whether the Republicans’ blockade was justified. It was, he decided, because he was sure Democrats would have behaved the same way if the situation had been reversed.
Mr. Graham is right that both Democrats and Republicans bear responsibility for the degradation of the process, but their responsibility is not equal. Senate Republicans’ behavior last year set a new standard for bad faith. The question, as the constitutional law scholar Peter Shane wrote last week, is “whether there remains any institutional penalty for sabotaging constitutional norms.”
The short answer is no. With the Senate remaining in Republican hands, Democrats have no power to block Judge Gorsuch’s confirmation. If they attempt to filibuster — which would be an understandable reaction — it’s highly likely the Republicans will eliminate that tool, as the Democrats did in 2013 for lower-court nominations, and Judge Gorsuch will sail through.
Neil Gorsuch may be qualified for the Supreme Court, but there’s little doubt that he would be among the most conservative justices in the court’s modern history, with negative consequences for workers’ rights, women’s reproductive freedom, politics uncorrupted by vast sums of dark money, the separation of church and state, the health of the environment and the protection of the most vulnerable members of society. If Judge Gorsuch is confirmed, his views will be driving decisions into the middle of the 21st century.