President Donald Trump repaid his conservative base with his nominee to the U.S. Supreme Court, Neil Gorsuch, who could shape our laws for decades.
It’s no surprise that Trump picked someone in the mold of Justice Antonin Scalia, who died last February and whose seat Gorsuch would take if confirmed.
The real question is how hard Senate Democrats will fight the nomination. Some want payback for Republicans unconscionably refusing last year to even grant a hearing to Judge Merrick Garland, Barack Obama’s well-qualified nominee for the vacancy.
But Democrats need to pick their battles. Gorsuch isn’t as objectionable as other potential nominees, and if confirmed he would not tip the ideological balance of the high court.
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The more important fight is over the next Supreme Court vacancy, if Trump gets to replace a Democratic appointee or Justice Anthony Kennedy, a Sacramento native who has been a key swing vote on gay marriage and other major issues.
Two wrongs don’t make a right.
The best course of action for Democrats is to give Gorsuch a full and fair hearing, rigorously vet him, and – unless it becomes clear he is unfit – allow a vote. Democrats could still vote against confirmation.
That’s the position taken by Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Judiciary Committee. She expressed concern about Gorsuch’s record on contraceptive rights and Trump’s promises to put justices on the court who would overturn Roe v. Wade. But instead of vowing to block the nomination, she promised a “thorough and fair review.”
Gorsuch, 49, who started meeting senators on Wednesday, appears to have a solid résumé. He was confirmed by voice vote to the 10th U.S. Circuit Court of Appeals based in Denver, where he has served for the past decade. While a fourth-generation Coloradan, he also has ties to the Eastern establishment – which Trump, by the way, loved bashing – with degrees from Columbia University and Harvard Law School. His late mother, Anne Gorsuch Burford, had a short and controversial stint as administrator of the Environmental Protection Agency under President Ronald Reagan.
Several liberal advocacy groups immediately opposed Gorsuch, criticizing his record on the Second Amendment, racial discrimination, police brutality and corporate power. They’re focusing on his ruling in the Hobby Lobby case, in which he joined a 2013 opinion (later upheld by the Supreme Court on a 5-4 vote) that backed a private company claiming a religious exemption to an Obamacare requirement to provide contraceptive coverage to employees.
Trump only heightened fears by meeting Wednesday with conservative activists supporting Gorsuch, including Wayne LaPierre, chief lobbyist for the National Rifle Association, which has been a major obstacle to common-sense gun control.
Under current Senate rules, if Democrats filibuster the nomination, it takes 60 votes to break it and proceed to a vote. Republicans hold 52 seats, so it would take at least eight Democrats to break ranks. Trump said Wednesday that if necessary, Senate Republicans should “go nuclear” and change the filibuster rule.
Republicans suspended other rules Wednesday to push Trump’s nominees for Health and Human Services and Treasury secretaries through committee after Democrats delayed them by boycotting hearings.
But that skirmish pales in comparison to what could happen on the Gorsuch nomination. Justifiably, many Democrats believe Republicans stole the lifetime appointment from Obama. The staggering hypocrisy of Senate Republican leader Mitch McConnell of Kentucky, who is calling for a prompt vote on Gorsuch, is hard to stomach.
Yet as tempting as it is to retaliate in kind for that abuse of power, it isn’t time yet for all-out partisan war in Congress. And two wrongs don’t make a right.