March 22, 2017
When President Trump announced that Judge Neil McGill Gorsuch was his nominee for the United States Supreme Court, there was an immediate cascade of loud cheers from his friends and supporters in the East Room of the White House, matched by an equally loud din from his critics. And so it goes in the current political climate.
President Trump has been met with lots of criticism — much of which has been self-induced — but this time I believe that the president has selected a nominee that should and will be confirmed by the United States Senate. Judge Gorsuch has excellent academic credentials: B.A. from Columbia University, J.D. from Harvard Law School, and a PhD from University College at Oxford (England). Equally impressive with his credentials is the fact that Gorsuch has clerked for two justices on the U.S. Supreme Court: Byron White and Anthony Kennedy. For a lawyer coming out of law school, there is no position more prestigious that clerking for a Supreme Court justice. I will add that, as an historical footnote, if Judge Gorsuch is confirmed by the United States Senate, he will be the first justice on the Supreme Court who had clerked for a still-current justice, in this case, Anthony Kennedy. For the last 10 years, Judge Gorsuch has served on the 10th Circuit Court of Appeals after being confirmed in 2006 by a simple voice vote in the Senate.
Judge Gorsuch is being nominated to fill the seat of the late Justice Antonin Scalia. Gorsuch has the reputation of believing in interpreting the Constitution in accordance with its original meaning, just as Justice Scalia had done so famously. So his nomination would fulfill one of President Trump’s campaign promises, to appoint a staunch conservative justice.
Gorsuch’s nomination has been lambasted by many groups across the United States, citing two main arguments: First, the nominee should be more of a “mainstream” judge, not a staunch originalist. The second argument, and perhaps the more overriding argument, is that the Republicans are “stealing” this seat from the Democrats. This goes back to President Obama’s appointment of Chief Judge Merrick Garland on March 16, 2016, to fill Scalia’s seat. But, the Republican-controlled Senate refused for 10 months to even hold hearings on that nomination, so it died at noon on Inauguration Day as Donald Trump became president. The Senate’s refusal to hold hearings and permit a vote on Judge Garland’s nomination violated some very basic concepts of the Rule of Law and, in doing so, exposed and perhaps perpetuated the continuing gridlock of our government structure.
Having said that, I do not think the answer is to block Judge Gorsuch’s nomination, for that would be a “wrong decision” and, as Squealer said in “Animal Farm,” “then where would we be?” More simply stated, two wrongs do not make a right, and it would make no sense to block Gorsuch’s nomination, even if the Democrats were somehow able to muster the votes to do so.
I don’t think anyone would expect President Trump’s next nomination to be any more mainstream than is Judge Gorsuch.
As president, Donald Trump is entitled to nominate justices whom he believes will best serve the country. We should respect that. The same is true about President Obama’s nomination of Judge Garland. We should respect that. But we didn’t, and that was not right. That wrong must somehow be recognized by those now in power. In other words, there has to be some fundamental change in how everyone respects the Rule of Law, whether they are in power or out of power. The country must continue to pursue that fundamental respect. At the same time the country has to move forward, and I believe that the Senate (absent some new catastrophic fact) should approve the nomination of Judge Neil Gorsuch to be the next associate justice of the United States Supreme Court.