I am extremely wary of Neil Gorsuch, but I’m also waiting to learn more. That Democrats will energetically fight his appointment to the Supreme Court is no more in doubt than that Republicans will crow for cutting taxes for the wealthy. But how the Democrats go about this is extremely important. They will be sending an important message about who they are and what alternative they offer to Trump and the Republicans who made him possible.
One thing driving Democratic opposition will be outrage at the GOP’s freezing out President Obama’s nominee Merrick Garland. This outrage is deserved but it isn’t widely felt in the country. I have a suggestion. Every Democratic Senator questioning Judge Gorsuch should begin with a question like this: “Do you feel that it is constitutionally appropriate for a Senate majority to refuse to consider a President’s nominee to the Court for nine months in hopes that a presidential election will produce a nominee more to the majority’s liking?”
If Judge Gorsuch is the man of integrity, intelligence, and independence he is claimed to be, he would answer, “No, I believe that action to be politically partisan and totally against the spirit if not the letter of the Constitution.”
Good. Point for the Democrats. Point for Gorsuch. That’s Possibility A.
Suppose, however, that Gorsuch weasels his way through this thicket, not wanting to buck his Republican sponsors or acknowledge the political and constitutional underhandedness that produced his own nomination.
That fudging will reveal the degree to which his legal principles are partisan rationalizations. That’s Possibility B.
Democrats should not let him—or the Republican Senators—get away with it. The next Democratic Senator should lead with a version of the same question:
“If it was legitimate for Republican senators to stonewall President Obama’s nominee for nine months in anticipation of fresh election results, why wouldn’t it be legitimate for Democratic senators to obstruct your nomination until the midterm election, especially in view of the fact that the Democratic presidential candidate won millions of more votes last November than the Republican? Or do you believe there is a cutoff for such stonewalling—a year, eighteen months, two years, four years?”
And the next Democratic Senator should lead with another question probing the same sore tooth. E.g., “ Judge Gorsuch, imagine that fate had landed you in the Senate rather than where you are as a distinguished member of the judiciary. Would you have refused to allow Senate action on President Obama’s nominee?”
Gorsuch will doubtlessly have an answer. Possibility A or Possibility B. Let him repeat it. Again and again. Before the hearings sink into specific issues or jurisprudential theory, the Democrats will have sent a message: Regarding Supreme Court appointments, we have played by the rules. The Republicans have not. Will you? Will the launching of the “nuclear option”?
At the moment, this is a message that the nation needs to hear, that a growing part of the nation sorely wants to hear: Play by the rules.