Neil Gorsuch and the Stolen Supreme Court Nomination

Guest post by Ajay Malshe

The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.
— David Leonhardt

The Senate Judiciary Committee will begin confirmation hearings for Judge Neil Gorsuch this month to consider his nomination by President Trump to the Supreme Court of the United States. In a process that Senate Republicans have deliberately obstructed for a year, Judge Gorsuch moves to fill the vacant seat of Justice Antonin Scalia who passed away in February of 2016. Judge Gorsuch brings to the table a range impressive credentials which, despite his heavily conservative leanings, would entitle him to serious and fair consideration from Senate Democrats under normal circumstances. Unfortunately, we are not living within a time of normal circumstances. Simply put, Neil Gorsuch is entitled to the same consideration that Senate Republicans gave to the nomination of Judge Merrick Garland, Jr. in 2016.

Judge Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, was nominated by President Obama to fill the vacant seat on the Supreme Court in February of 2016. Judge Garland came with impeccable credentials qualifying him for the job.  The grandson of refugees who fled persecution and anti-semitism in Russia, Judge Garland grew up in a middle class home to a mother who served as a community volunteer and a father who owned and operated a small business.  Judge Garland graduated from his high school as class valedictorian and a National Merit Scholar and eventually went on to graduate from both Harvard College and Harvard Law School with honors in each case.  After clerking for Judge Henry Friendly of the Second Circuit Court of Appeals and Supreme Court Justice William Brennan, he then went on to a distinguished career in public service.  He is most famous for his role as the chief prosecutor of Timothy McVeigh and Terry Nichols, the white nationalists behind the Oklahoma City bombing in 1995, the worst act of domestic terrorism in United States history

When President Obama nominated Judge Garland to serve on the Supreme Court, the nonpartisan American Bar Association’s Standing Committee on the Federal Judiciary, which routinely reviews the professional qualifications of nominees for judicial positions in the federal court system gave Judge Garland their highest possible rating, noting his “exceptional intellect, industry and superior work ethic” as well as his “reputation for being one of the hardest working and best prepared judges on the D.C. Circuit”.  Republicans had also previously gone out of their way to praise Judge Garland as a “brilliant jurist” and “a man of character and integrity” when he had previously been nominated to serve as a federal judge.  Republican Senator Orrin Hatch referred to Judge Garland as "not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration." Current Senate Republicans John McCain, Susan Collins, Pat Roberts, James Inhofe, Dan Coats and Thad Cochran also voted to confirm Garland in 1997 to his current position on the Court of Appeals of the DC Circuit.  Yet when presented with Judge Garland’s nomination in 2016, Senate Republicans stonewalled Judge Garland, refusing to grant him a confirmation hearing despite his obvious qualifications for the job. Some Senators, such as Republican Senator Mike Lee, refused to even grant Judge Garland so much as even the basic courtesy of a meeting. Senator Lee commented that “any meeting with any nominee put forward by President Obama would only be a waste of the Senate’s time”.

Even though Article II, Section 2 of the United States Constitution clearly mandates that the President of the United States “shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court”, Senate Republicans had no interest in doing the job they were required by the Constitution to do and failed to consider Judge Garland’s nomination to the Supreme Court. Instead they were content to simply let his nomination expire, inventing an absurd principle that Supreme Court nominations should not be considered during the final year of a President’s term in office. Senate Majority Leader Mitch McConnell recalled a conversation with President Obama in which he claimed to have looked the President in the eye and said that he would not fill this Supreme Court vacancy as “one of my proudest moments.”

The manner in which Senate Republicans treated Judge Garland should make you angry. Republican obstructionism was a hallmark of President Obama’s tenure in office and something that we have grown accustomed to over the past eight years, but this was unprecedented, unseemly and flagrantly un-American. Make no mistake, the Senate Republicans stole this nomination from President Obama and Judge Garland. President Trump, who nominated Garland’s replacement, has demonstrated time and time again that he has no respect for the judicial branch of government, and that he lacks even a cursory understanding of how our Constitution and government work.  Democrats must stand united in their opposition of Judge Gorsuch or any other nominee put forth by President Trump until the Senate gives Judge Garland the full and fair consideration for the Supreme Court that Republicans wrongfully denied him.

Look, the math does not support Democrats on this nomination or on any future nomination while the Republicans control the Senate. The support of at least sixty Senators has traditionally been required to confirm a president’s nomination to the Supreme Court, but Mitch McConnell has made it clear that he is willing to exercise the so-called “nuclear option”. The nuclear option would remove the filibuster and prevent the opposition from stopping a Supreme Court nomination by allowing nominations to the confirmed by a simple majority.  We cannot let this dissuade us. Our voices must be loud and clear. There is no room for compromise or deference in a Trump administration that appears to have been totally compromised by white nationalists, anti-semitism and foreign agents. If Republicans want to remove the filibuster to force Judge Gorsuch down our throats, so be it. Such carelessness on their part will only hurt their party in the future when they ultimately lose control of Congress and the Presidency. For now, Senate Democrats have to be a voice for the majority of Americans who did not want Donald Trump to become President. They must be constant reminder to Republicans that we will not cower to their abusive behavior, that our opposition is organized and united, and that despite this temporary setback, we will ultimately prevail at the polls in elections to come.

This can work. If you want proof, look no further than the effect that Americans have had in rising up together in support of the Affordable Care Act over the past few months. Republicans have been bellyaching to repeal the Affordable Care Act for years, and were more than happy to pass bills to repeal the law 54 times while President Obama was in office (knowing he would always veto the bill and they’d never have to face the consequences for it).  Once Republicans controlled both houses of Congress and the presidency, they could have easily repealed the law if they wished. But it quickly became clear that they had emerged from six years of obstruction with no healthcare plan at all. Angry progressive turnout at town halls has reinforced their hesitance to act.

The Judicial branch has, since the dawn of our republic, been a vital and important check on executive power in both Republican and Democratic administrations. It was the Supreme Court who curbed gross overreach by the George W. Bush administration in finding that the military commissions they had established to try detainees at Guantanamo Bay were in violation of the Uniform Code of Military Justice and Article Three of the Geneva Convention. And it was federal district and circuit court judges across the country who put a halt to the disastrously cruel and incompetently-written Executive Order on Immigration issued by the Trump administration. Republicans in Congress on the other hand have so far shown no willingness to stand up to President Trump and be an effective check on his power. Representative Jason Chaffetz, Chairman of the House Oversight Committee, would rather investigate leaks to journalists or even a cartoon character than investigate the connections between Russian intelligence agents and the Trump campaign. House Speaker Paul Ryan, despite at one point referring to President Trump as a racist, is more than happy to accede to the Trump agenda as long as the wealthy benefactors bankrolling his political career can still get their tax cuts. Now more than ever, a strong, independent judiciary is absolute crucial to the survival of our American democracy. 

The Republicans shattered bedrock principles of how our government is supposed to function with their behavior over the past year. If Senate Democrats in response were to treat Judge Gorsuch like they would any other Supreme Court nominee, it would only serve to normalize the shameless and offensive obstructionism that Senate Republicans showed with Judge Garland’s nomination. Judge Gorsuch’s confirmation hearings begin in less than a month and as the future of the Democratic Party in Hillsborough County, we have to be proactive and make our voices heard. That means contacting Senator Bill Nelson, and yes even Senator Marco Rubio (when he isn’t hiding from his constituents by taking taxpayer-funded trips to Europe) to voice our concerns and opinions.  Our Senators have to know that their constituents are paying attention and that we will not back down from abusive Republican behavior. Below is the contact information for each Senator’s Tampa office.  Always remember that Senators work on your behalf and are obligated to hear you out. Write them, call them, or even make an appointment to speak with a staffer at their Tampa office, but please always interact with them in a respectful manner.  A vigilant and educated constituency is a spineless politician’s worst nightmare.

Tampa Office for Senator Bill Nelson
801 N. Florida Ave.
4th Floor
Tampa, FL 33602
Phone: 813-225-7040

Tampa Office for Senator Marco Rubio
5201 West Kennedy Boulevard
Suite 530
Tampa, FL 33609
Phone:  813-287-5035
[Editor's note: this office has been closed. You can reach Senator Rubio in Washington D.C. at 202-224-3041]

In closing, I urge you to please watch this video of Senator McConnell gleefully telling a crowd of supporters just how proud he was to railroad Merrick Garland’s nomination to the Supreme Court just so he could stick it to President Obama. I don’t want Senator McConnell to have the last laugh in this stolen nomination and neither should you. Let us stand together and help give Senate Democrats the courage they need to take this principled stand against Neil Gorsuch.  They may not prevail in the short term, but history will never forget their bravery in standing up for our Constitution, for Judge Garland, and for those principles of democracy, fairness and fundamental decency that we hold so dear.