Apr 032017

As the nomination of Judge Gorsuch for the vacant seat on the US Supreme Court continues to move forward, I find myself, as someone who generally characterizes herself as liberal and who tends to “vote blue,” torn.

Given my policy predilections there are in fact some significant reasons to favor his nomination. In particular he seems willing and able to clip the wings of government power when it tries to act beyond its authority. In light of a presidential administration that seems inclined to flex its muscles far beyond the bounds of how the Constitution permits it to, those sorts of libertarian leanings could be an important check on executive abuse, abuse that often targets liberal values.

On the other hand, although his jurisprudence on the subject is thin, miscellaneous comments he’s made about reproductive freedom make me concerned that his notion of individual liberty does not extend to a woman’s right of self-determination over her own body. Similarly, the hearings suggested that he may lack sufficient empathy for the lives his jurisprudence will touch. While I don’t generally agree that all liberal policies are necessarily a good idea, or constitutionally permissible, the intent behind them has always struck me as inherently valid and consistent with what it takes to form this more perfect union. Too much pushback against these policies, particularly when rooted in obliviousness to how Americans of differing backgrounds find themselves needing to live their lives, will not lead to liberty and justice for all.

And yet Gorsuch is educated, capable, and presumably persuadable. He is not a rabid ideologue. Thus there remains the concern for what might happen if his nomination is rebuffed and the next candidate put forth is.

It is hard to know how to counsel Democrats to proceed. There is a significant risk in rejecting him. On top of tempting an even worse candidate now, the mechanics of resistance, of pushing the filibuster and daring it to be destroyed, may remove it as an option to use against a worse candidate in the future. On the other hand, there’s no guarantee that it couldn’t be destroyed later, for that worse candidate.

Furthermore, Democrats still have two significant structural concerns about proceeding with Gorsuch’s appointment, concerns apart from qualms about his jurisprudence and that can’t simply be dismissed.

One such concern relates to the Constitutional contortion that refusing to even hold a hearing on Merrick Garland, Obama’s nominee for the same vacancy, represented. True, part of the Democrats’ current position reflects something of a “what’s good for the goose is good for the gander” attitude, but there is nevertheless a sense shared by many, and reasonably, that this seat is simply not available for Trump to fill. Worse, there is also the well-founded fear that if Democrats let Trump fill the seat it will simply encourage future similar political hijinks, which will only continue to politicize the judicial appointment process. The judicial nomination process is desperate for a reset in order to enable things to go back to (relative) normal, and Democrats rightly feel they can’t vote for Gorsuch and yet still have that reset happen.

Secondly, given the serious allegations about Trump and his associates, including those relating to his candidacy and even potentially his administration, all of his nominations have acquired an air of illegitimacy. There are significant reasons to question the propriety of giving a life appointment of such lasting influence and import to someone who was nominated by an official whose powers (including the power to make this appointment) seem to have been so questionably acquired. At minimum it is not unreasonable for Democrats to want to delay the appointment process until these issues have been resolved.

Note that the above procedural reservations about his appointment are not particularly political. While they may at times be put forth as strategy by the Blue Team to defeat the preference of the Red Team, they still stand on their own merit, independent of any team, just as Gorsuch’s jurisprudence is also not necessarily much more of a win for the Red Team as it would be a loss for the Blue. Instead they represent serious governance issues and deserve to be treated as such by both parties. My recommendation for both parties would therefore be that they start to treat them as such, and that they therefore agree to put the process on pause, both to allow the investigations play out and even to potentially allow for mid-term elections, which would provide a de facto reset and be one that will give both parties more guidance on the merits of continuing to push forward or oppose the appointment.

Unfortunately given the prisoner’s dilemma playing out right now, it may be too much to hope for such bipartisanship. Democrats might realistically have to play their cards as aggressively as they can, both to increase their chances at the mid-terms as well as to try to leave the seat open for someone whose jurisprudence is more accepting of American inclusiveness. They may fail, either at blocking Gorsuch or even potentially someone much worse, and while part of me wishes they would not risk the consequences of such failure, I am not sure they can be faulted for the effort.

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