Democrats Have a Tough Case to Make Against Gorsuch

He’d best not seek input from former Colorado senator Ken Salazar, a Democrat who represented Gorsuch’s native Denver. In remarks prior to Gorsuch’s Senate approval to be a U.S. circuit judge in 2006, Salazar observed the jurist had demonstrated a “dedication to fairness, impartiality, precedent, and the avoidance of judicial activism.” It’s routine for senators to compliment executive-branch nominees from their home state, but this was a liberal in the mainstream of his party extolling the qualifications of a constitutional textualist, a jurisprudence commonly associated with unbending conservatism. Said Salazar, “At a time when too many judicial nominations are bogged down by partisan and ideological rancor, it is heartening to see a nominee on whom senators from both parties can agree.”

Lawyers from both parties, too. Tuesday evening, Neal Katyal, President Obama’s former acting solicitor general, wrote that Gorsuch met the high behavioral and intellectual requirements to be a justice on the High Court. “I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence—a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him,” he wrote in the New York Times. Katyal cited two cases in which Gorsuch ruled in favor of immigrants, one of which elicited his skepticism of judicial deference to the executive branch. “When judges defer to the executive about the law’s meaning, [Gorsuch] wrote, they ‘are not fulfilling their duty to interpret the law.'” Harvard law professor Laurence Tribe, an adviser to Barack Obama’s first presidential campaign, conveyed his own plaudits on Twitter. Norm Eisen, a Harvard-trained lawyer and Obama’s onetime “ethics czar”, said in an interview with Axios that Gorsuch is a decent man and a “literate” writer.

The Senate Judiciary Committee recommended Gorsuch for confirmation to the U.S. Circuit Court of Appeals for the 10th Circuit with little fanfare—”without debate or dissent,” the Oklahoman put it. He was approved with three other judicial nominees en bloc.

Such a reputation and noncontroversial history in the upper chamber compromise Democratic attempts to block him. Some minority senators, like Oregon’s Jeff Merkley, have sworn payback for the GOP’s inaction on Judge Merrick Garland last year. But the evolved political circumstances from then to now—then an election year and now the beginning of a new presidential administration—have changed the battleground on which Merkley, Schumer, and filibuster-minded Democrats would wage their fight. The nuclear option lingers as a possibility. And the minority still has a few years ahead to consider, during which other seats on the High Court may come open. Judiciary Committee member Chris Coons seems aware of the reality.

“I’m not going to do to President Trump’s nominee what the Republicans in the Senate did to President Obama’s. I will push for a hearing and I will push for a vote,” he told CNN this week, prior to the Gorsuch announcement.

The ranking member of the judiciary panel, California senator Dianne Feinstein, said Tuesday night she has concerns about Gorsuch’s view of how the law should treat women’s health care. But she didn’t reflexively state her disapproval of the nominee, like Merkley preemptively did, and fellow Judiciary Committee member Patrick Leahy did after Gorsuch was unveiled as the selection. And unlike Schumer, she did not establish a test for the appellate judge. “At a time when public trust in our institutions is at an all-time low and our country is bitterly divided, a thorough and fair review is vitally important,” she said.

Such an examination could reveal that Gorsuch, like he showed during a gracious speech thanking the president for his nomination, is not the man Democrats want to fight—to quote a frequent phrase of Schumer’s—”tooth and nail”.