Judge Neil M. Gorsuch, President Donald Trump’s nominee for the U.S. Supreme Court has been well-received — certainly among Republicans — and among at least a few Democrats as well. Despite combative early pledges to fight his nomination, Democrats may find it wise to keep their powder dry.

Gorsuch, a widely-respected judge currently serving on the U.S. Court of Appeals for the 10th Circuit, is beloved by conservatives but is by no means an ideologue. Gorsuch is known for his deep conviction that it is the responsibility of the legislative branch, as the people’s representatives, to write laws. Judges are merely its interpreters.

Gorsuch frequently describes his legal philosophy by quoting the man he will replace, the late Justice Antoine Scalia. “If you’re going to be a good and faithful judge,” Scalia said, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

“Legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But…judges should do none of these things in a democratic society.” – Judge Neil Gorsuch

Like Scalia, Gorsuch is an originalist. He believes that judge’s are bound by the text of the law regardless of personal ideology. “Legislators,” Gorsuch said in a speech earlier this year, “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But…judges should do none of these things in a democratic society.”

This view often leads Judge Gorsuch to decisions that are not uniformly politically conservative or liberal — a trait that should recommend him to Democrats regardless of their view of their dim view of the President who nominated him.

The Wrong Fight

In today’s political climate, it is unwise to hold one’s breath waiting for an outbreak of bipartisan comity. Smarting from the Republicans refusal to confirm President Obama’s Supreme Court nominee Merrick Garland in the closing months of Obama’s term, liberals are spoiling for a fight.

Republicans justified blocking Garland’s nomination by arguing that it should be for the next President to decide who fills Scalia’s vacancy. As infuriating as this was for liberals, doing the same to Gorsuch at the start of Trump’s will prove much harder to justify.

For Democrats, Blocking Neil Gorsuch Won't Pay Off
Senator Chuck Schumer (D-NY)

Still, Senate Minority Leader Chuck Schumer issued a statement — almost certainly prepared in advance — immediately after Tuesday night’s announcement pledging a fight. But, in light of the largely positive reaction Gorsuch has received, at least some Democrats are having second thoughts.

Sen. Chris Coons, D-Delaware, a member of the Judiciary Committee told CNN that despite the Republicans’ decision to block Judge Merrick Garland, it would be unwise to return the favor. “I’m not going to do to President Trump’s nominee what the Republicans in the Senate did to President Obama’s,” Coons said. “I will push for a hearing and I will push for a vote.”

Other Democrats also agree with that sentiment. “There’s no doubt what they did [on Garland] was wrong and unconstitutional. In the end, I don’t think we should play their game. Have a hearing and vote,” Sen. Jon Tester (D-Mont.), an endangered Democratic incumbent, told Politico.

A Futile Effort

Blocking Gorsuch will prove a futile effort in any case. Republicans are almost certain to respond by employing the so-called “nuclear option,” a tactic employed by Democrats to overcome Republican objections to President Obama’s judicial nominees. By dispensing with the 60 vote threshold required to overcome a filibuster and allow a vote, Republicans could confirm Gorsuch with a simple majority. Forcing Republicans’ hand in an un-winnable fight over Gorsuch will establish a precedent that renders Democrats powerless to stop future Trump nominees.

“Democrats are worried, multiple aides said, about Republicans having an excuse to kill the filibuster on the Supreme Court now, and later use it to ram through an even more conservative nominee if there is another vacancy during Trump’s presidency.” – Politico

President Trump’s early executive actions, especially his ban on travel from seven Muslim countries, appalled Democrats. It has raised considerable concern that Trump is willing to stretch his executive authority beyond what Democrats, and some Republicans, believe permissible. This brings the role of the Judicial branch as a check on the President’s power into sharper focus. Gorsuch’s reputation for independence and his hostility towards ideological interpretations of the law suggest he may prove an ally to Democrats concerned about a Trump Administration running amuck.

“[I]f the Senate is to confirm anyone, Judge Gorsuch…should be at the top of the list.” – Neal Katyal, an acting solicitor general in the Obama Administration.

Neal Katyal, an acting solicitor general in the Obama Administration, argued in a New York Times op-ed that “if the Senate is to confirm anyone, Judge Gorsuch…should be at the top of the list.” Katyal contends that “one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws? I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law.”

Even if Democrats succeed in blocking Gorsuch, the next nominee is not likely to be any more acceptable. As law professor Sasha Volokh, a Trump skeptic, wrote, “[i]f Trump’s first choice is, unexpectedly, good, take it, because the second choice will surely be worse.”

Blocking Gorsuch is Politically Risky

Blocking Gorsuch holds political risks for Democrats too. His reputation for fair-mindedness and the respect for him across the political spectrum make Gorsuch hard to demonize. With 23 Democrat Senate seats up for grabs next year, obstructing a candidate as well-qualified as Gorsuch runs the danger of a political backlash.

The battle over judicial nominees has a long history that dates back at least to Democrats’ intransigence towards George W. Bush’s judicial appointments. It was a favor returned in kind by Republicans under Obama. Former majority leader Harry Reid’s decision to employ the nuclear option and Republican refusal to confirm Merrick Garland were further escalations.

A quixotic battle against Gorsuch would establish a precedent that no nominee offered by an opposition party President will be acceptable. It is a position that Democrats may well regret if they succeed in retaking the White House in 2020. The best move is to call a truce on the judicial nominee war for now and give Neil Gorsuch a chance.

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