Neil Gorsuch may be a decent man and a reasonable jurist, though it is clear that his “reasonableness” includes some very right-wing convictions about reproductive freedom and “religious freedom.” But okay. He is not a lunatic, unlike most Trump appointees. It does not matter. He is being nominated in the middle of a crisis of the republic, and he is only being considered because the Republicans outrageously refused to allow President Obama to fulfill his constitutional duties to fill the Court vacancy caused by Scalia’s death.
Democrats must oppose Gorsuch, on principle but also because of the pragmatics of starting to organize real opposition to Trumpism and to mobilize Democratic constituencies and reinvigorate the party.
Indeed, every Democratic Senator who questions him at his confirmation hearings should ask him these three questions:
(1) do you believe that the Constitution empowers the sitting President of the US to fill vacancies to the Supreme Court with the advice and consent of the Senate, and do you believe that it is constitutional for a Senate majority to refuse to even consider a nominee because they don’t like the President and would rather have a vacant seat than anyone appointed by him or her?
(2) Are you familiar with the record of Merrick Garland, the Chief Judge of the US Court of Appeals for the District of Columbia? Do you believe that he is an honorable and respected professional jurist who meets the qualifications to serve as a Supreme Court Justice?
(3) Do you believe that it was proper, right, or constitutional for the Republican-controlled US Senate to refuse to even hear Garland’s nomination?
It is important to call him out and put his integrity to the test.
But it is even more important to use the Senate confirmation process as an opportunity to communicate loudly and clearly a simple and yet fundamental message: in a constitutional democracy the rule of law matters.
The general public needs to be reminded, seriously and clearly, that the Republican party has recently played fast and loose with the rule of law, and that the current Republican President has disdain for the rule of law, his TV performance last night notwithstanding.
The core Democratic constituencies need to be reminded — and perhaps even informed! — that the Democratic party is serious about principle and serious about mounting a strong opposition to the Trump agenda.
And the Republicans in the Senate and the House and throughout the land need to be reminded that if politics is “hardball,” the Democrats can play too, and that they can play for the “long game” as well as the short one.
There is danger here, as there is in all political moves. Such an opposition to the Gorsuch confirmation could backfire among the broad public if it is not done effectively and communicated well. It might well intensify the sense of constitutional crisis — but the crisis is being caused by the Republicans and especially by Trump, and it will not be resolved by laying down to whatever the Republicans want. Moreoever, such a move will surely upset those Republicans, such as John McCain and Lindsay Graham, who in other ways are potential allies in contesting some of the extreme measures envisioned by the Trump administration. But, again, too much has been done to placate these figures, who have been timid, and inconsistent, in their criticisms of Trump, and have consistently signaled that they are Republicans first. So be it. If they might be allies in some things, this is fine. This is a reason to engage them agonistically. But it is not a reason to submit to them.
The Senate’s authority to advise and consent, and the Congressional power to hold public hearings more generally, is an important part of many decision-making processes. In this case, it will determine whether or not Gorsuch will be confirmed. Here the hearings will matter, but also the Senate filibuster rule, and whether Senate Republicans will respect this long-standing rule.
But such hearings are also important in a broader way, as occasions for issues to be publicly aired, for experts to be invited to give testimony, and for political appointees to be challenged, about their own views but also the views of the Administration that has nominated them.
Senate Democrats are now on the spot in a very public way. They will either perform their own cravenness, or they will perform a broad political commitment to the rule of law and to the core values of a liberal democracy.
They ought to say a loud “No!” to Gorsuch. For by doing so, they will be saying “Yes!” to the political project of building a new Democratic, and democratic, political majority.