by Jonathan H. Adler
The Volokh Conspiracy / 2017-02-01 10:46
President Trump shakes hands with Judge Neil Gorsuch, left, accompanied by Gorsuch’s wife, Marie Louise Gorsuch, after Trump nominated him to the Supreme Court. (Chip Somodevilla/Getty Images)
President Trump’s just-announced Supreme Court nominee had not even left the East Room of the White House before my notifications were filled with news releases and tweets urging opposition to Neil Gorsuch’s confirmation. Immediately, the partisan hypocrisy concerning judicial nominations was on display.
The usual pitch against a Supreme Court nominee is that he or she will alter the balance of the court, but that argument has no purchase here. Replacing one conservative jurist with another won’t alter the balance of the court much at all.
Instead of trying to maintain that the confirmation of Judge Gorsuch and the maintenance of the Supreme Court’s current balance would somehow imperil individual rights, Senate Democrats and their allies are instead arguing that Gorsuch must be blocked to retaliate for Senate Republicans’ unfair treatment of Merrick Garland, whom President Obama chose last March to replace Justice Antonin Scalia but who never received Senate confirmation. This seat, the argument goes, was “stolen” from a Democratic president, and must therefore be kept open. This injustice, they argue, justifies a filibuster of Gorsuch.
The problem with this argument is that most Senate Democrats were willing to filibuster a Supreme Court nominee before Garland was nominated, let alone blocked by Republicans. Indeed, before Barack Obama was even elected president, prominent Senate Democrats and progressive activists tried (but failed) to filibuster President George W. Bush’s nomination of Samuel Alito. Thus, the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for Garland is complete and utter nonsense.
Let’s review the history……