Gorsuch's Nomination Is the Fruit of a Broken Confirmation Process

Now that we’re done making nice, here’s my question for Judge Neil Gorsuch:

What campaign promises did you make to get this job, and do you intend to keep them?

It’s a rude question, akin to throwing a dead cat into a church service. It’s disrespectful to Gorsuch—a judge whom I respect, much as I disagree with much of his philosophy. It’s a question that until this year would have been completely out of line in a confirmation hearing.

But today it’s a question that has to be asked, and it’s a question that is—and will be for years—on the mind of many Americans.

That’s because the Gorsuch nomination comes to the Senate compromised by the crudest sort of bare-knuckle partisan politics; the concerns that fact raises will be important for years to come. The vacancy he will fill was created by an unprecedented Senate power play that denied an elected president his constitutional prerogative; the president who nominated him has made an unprecedented effort to politicize and even attack the courts’ authority.

We’ve been reading for years that the judicial confirmation process is “broken.” But let’s be clear-eyed. In 2017, the process is broken in a way, and to a degree, it never has been before.

Let’s also face this fact: “both sides” aren’t responsible for the stain on the Gorsuch nomination. The complete annexation of the Supreme Court to partisanship was engineered by the party, and the president, that has nominated Gorsuch to a seat that previous practice suggests should not have been open for him to occupy.

Most likely, Democrats will ask Gorsuch for his views on important legal and constitutional issues, and Gorsuch will simper daintily and refuse to give any hint because that would compromise his independence.   

We are already seeing Republican senators play their part in what then-Professor Elena Kagan once called the “vacuity and farce” of senatorial confirmation. “I’ve long believed that the Senate owes the president some deference with regard to his judicial nominees,”  Utah Republican Senator Orrin Hatch, of the famous straight face, told the committee Monday morning. “Something is seriously wrong when the confirmation process for a Supreme Court nominee resembles a campaign for political office.”

Saddle-pal, please.

The reason the committee is meeting today is that Hatch and his colleagues refused to consider any nominee by President Obama after Justice Scalia died more than a year ago. The reason? That the next nominee should in fact be chosen through “a campaign for political office.”

Here is Hatch himself, writing on March 16, 2016: “Let the American people decide whether they want Hillary Clinton or the Republican nominee to select the next Supreme Court justice.” Here’s Iowa Republican Senator Charles Grassley, chair of the Judiciary Committee, also last March: “The American people shouldn’t be denied a voice.” Here’s Senate Republican leader Mitch McConnell of Kentucky, speaking before Scalia’s body had even been moved from the remote Texas ranch where he died: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

The message is explicit: an associate justiceship of the Court is a partisan office; a future Justice should be chosen by the people; a duly elected president is owed no “deference” if a hostile opposition controls the confirmation process.

And “chosen by the people” is also not a metaphor. Candidate Donald Trump put forth an explicit list of candidates from which he promised the voters to pick the next Justice. And on that list was the name of Judge Neil Gorsuch. The release of that list—the injection of specific names into electoral politics—is, as far as I can tell, unprecedented in our politics. Previous presidential candidates have tended to vow to appoint Justices who are “like” one or another admired judicial figure. Trump went further. He asked the people to vote on specific nominations.

In other words, Gorsuch’s name, by reference to Trump’s website, was on the ballot.

On the campaign trail, Trump repeatedly asked the people to vote for him in order to produce certain judicial results.

“I am pro-life and I will be appointing pro-life judges,” he told the nation in the third presidential debate. Roe v Wade, the 1972 decision legalization abortion, Trump said, would be overturned: “If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. Because I am putting pro-life justices on the court. I will say this. It will go back to the states and the states will then make a determination.”

That was said by the man who has nominated Gorsuch to the Court—and who, before that, put Gorsuch’s name on the ballot.

Of course, Gorsuch himself did nothing before the election to become a political candidate. But when the White House called him to come for an interview, he came. He accepted a nomination doubly tainted—by the crude power-play against Garland and by the loud proclamation that a Trump appointee would vote as Trump promised he would.

What was said in that interview?

I don’t think Neil Gorsuch bargained with Trump over future votes. Lawyers and judges I admire, and who don’t share his conservative stances, support his nomination. I am actually relieved that Trump brought himself to nominate a grown-up to the Court. Gorsuch is about as well as we can expect to do in the next four years, and better than a lot of names Trump could have picked.

But that doesn’t mean the question shouldn’t be asked. In fact, it must be asked. This is the first Supreme Court confirmation since Trump and the GOP announced the new rules. Supreme Court justices are now elected partisan officeholders—and the next nominee may not be a Neil Gorsuch. The question about campaign promises must be asked of every nominee from now on.

That’s even truer when the appointing president has—within the first two months of his term—begun an open war against the Article III judiciary. Trump clearly has no allegiance to the idea of an independent judiciary, and does not hesitate to besmirch and even threaten judges who cross him. Gorsuch is part of Trump’s attempt to shape the judiciary; will Gorsuch promise, here and now, to stand up to him? When Trump proclaims a “national-security” crusade against this month’s enemy within, Gorsuch will stand up to him or say, “I defer”?

We heard a lot today about the glories of Colorado. Enough of that, and never mind all the blather about balls and strikes. We are in a new ballgame, and Gorsuch’s patron has proclaimed him a player, not an umpire. He should not object to being treated that way.