Op-Ed: Gorsuch Nomination

Greg Ranzini '18
News Editor

Photo Credit: Slate.com

Photo Credit: Slate.com

Let us observe a moment of silence for Merrick Garland. He was a Supreme Court nominee that no right-thinking conservative could oppose; a Harvard valedictorian who in his youth clerked for two Eisenhower appointees, and a judge who has been consistently measured and moderate. He has infuriated progressives with his indulgent treatment of prosecutors and frustrated libertarians with his reluctance to reschedule marijuana, but on the whole he simply tacks straight down the middle of most issues. He rarely dissents, and he is rarely dissented against. Orrin Hatch once championed him as “a fine man.” He was the compromise option that no second-term Democrat would choose, the unmovable rock of the D.C. Circuit, Anthony Kennedy on decaf. And then, President Obama called Hatch’s bluff, and Judge Garland became unacceptable by association. Senate Republicans pretended that they had never praised him and acted as if Obama had never nominated him. Judge Garland waited in the wings for 293 days without a hearing.

This past Tuesday, President Trump nominated Neil Gorsuch in Garland’s place. He, too, is a Federal Appellate judge and an accomplished academic. In 2002, he even came to Judge Garland’s defense, bemoaning in an op-ed that Garland and his then-colleague on the U.S. Court of Appeals, John Roberts, “among the finest lawyers of their generation,” were being “grossly mistreated” by delays in the Senate. Nearly fifteen years later, he is strangely silent as he stands to benefit from those same, unjust delays. This selective amnesia is regrettable, but not unexpected, for beneath his veneer of respectability, Neil Gorsuch is nothing like Merrick Garland.

Neil Gorsuch is an ideologue. He favors “religious freedom” when it means denying women contraception, but he believes that city governments may make “content-based judgments” to place Christian symbols in public parks. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013); Summum v. Pleasant Grove City, 499 F.3d 1170, 1174-75 (10th Cir. 2007) (McConnell, J. and Gorsuch, J. dissenting). He rejects Chevron deference, the dormant commerce clause, and net neutrality. He campaigns against euthanasia and supports the death penalty. He is, in essence, a more prosecutor-friendly Scalia, with enough years left in him to skew the Court to the right for potentially the next half-century. 

Under normal circumstances, pushing Garland aside in favor of Gorsuch would be a headline-making scandal: a shameless partisan power-grab against the nation’s most storied nonpartisan body, coming as the culmination of an eight-year-long campaign to erase the legacy of our first Black president. But these are not normal times. Indeed, by the standards of the Trump administration, Gorsuch seems an outlier for his normalcy. He is not openly racist and no more vocally sexist or homophobic than any other member of the Christian Right. In the context of the last two weeks, he appears to be the ringmaster in a tent full of clowns. Democrats in the Senate seem eager to accept a Justice Gorsuch as the best they can hope for from President Trump. And so they lower their resistance to the most consequential of his nominees: a decades-long blot on the American judiciary.

Sure, Gorsuch has never, to our knowledge, branded the Council on American-Islamic Relations “cultural jihadists,” advocated America’s joining the “church militant” in a holy war, declared that he intends to destroy the state from the inside, or terrorized his ex-wife in an attempt to keep her from sending their children to a particular prep school because he objected to how many Jews attended. But if “he’s not as crazy as Steve Bannon” has become our litmus test for whether a nominee’s views are too extreme, we are in severe trouble as a country. The GOP spent the last eight years demonstrating that shameless obstructionism—shades of Harry Byrd’s “massive resistance”—carries much milder political repercussions than conventional wisdom suggested. Much of this success can be attributed to how the Democratic Party responded under Obama: always turning the other cheek, always extending an olive branch and a conciliatory compromise, in the vain hope that the Republicans would come to the table and bargain like adults. Instead, progressives have watched aghast as their representatives grovel and scrape down the high road like broken currs, as the mirage of “truth in the middle” recedes constantly in front of them.

Now, in Trump’s age of “American carnage,” we see this strategy of anchoring and adjustment in its crystallized, post-truth perfection. The Republicans have pulled the country so far to the right that they have taken all the slack out of objective reality. Now that even the most audacious spin is insufficient to support their agenda, they have launched an assault on truth itself: braiding in “alternative facts,” racist falsehoods, and imaginary massacres and demanding that the Left again meet them in the middle. Renouncing their past support of Merrick Garland and erasing his nomination is a comparatively easy deception. Perhaps, finally, they have overplayed their hand. Confronted more directly than ever with reality’s “well-known liberal bias,” to borrow Stephen Colbert’s indelible phrase, Americans may yet come to realize that the midpoint between a truth and a lie is still a lie. I do not hold out much hope, however.

When the street protests subside, and the fatigue of constant vigilance and simmering outrage sets in, the Republicans will have their stolen Supreme Court seat. The Democrats, seeing Judge Gorsuch’s conventional credentials and buttoned-up appearance, are on the verge of breaking already. Facing the unspoken threat that Trump might counter with a Justice Spencer or Thiel or Yiannopoulos, they will once again fold. But, whatever sliver of bargaining room they get out of this sacrifice will not begin to compensate the millions of Americans that Justice Gorsuch will harm in his decades on the bench. And even in the shorter term, as long as this strategy continues to work, Republicans will remain keen on keeping Trump around—no matter how uncomfortable they may find it to tie themselves in knots defending his behavior.