Last night, President Trump nominated Tenth Circuit Court of Appeals Judge Neil Gorsuch to Justice Scalia’s seat on the Supreme Court. Judge Gorsuch’s qualifications, legal skills, and devotion to the Constitution and the rule of law are not in dispute.
Senate Democrats and their liberal allies marshaled their usual talking points of “extreme,” “anti-woman,” “out of the mainstream,” etc., before President Trump’s nominee was even announced. On January 27, People for the American Way attacked Judge Gorsuch for his “extreme views,” misrepresenting his judicial opinions in the process. House Minority Leader Nancy Pelosi said about his nomination: “[I]f you breathe air, drink water, eat food, take medicine or in any other way, interact with the courts — this is a very bad decision.” But these baseless attacks have fallen especially flat this time because Judge Gorsuch is simply unassailable.
Senate Democrats’ opposition to Judge Gorsuch is especially awkward given that when he was nominated to the Tenth Circuit in 2006, he was considered so uncontroversial that he was confirmed via unanimous voice vote. Twelve current Democratic Senators, including Senators Schumer, Feinstein, and Leahy, approved his nomination. Noted liberal Rachel Maddow called Judge Gorsuch a “relatively mainstream choice,” and President Obama’s Acting Solicitor General Neal Katyal praised Judge Gorsuch, saying his judicial record showed “a commitment to judicial independence” that “would help to restore confidence in the rule of law.”
This is what is really happening with the politics of the “uproar” over Judge Gorsuch’s nomination. Senate Democrats, led by Senator Chuck Schumer, are convinced that resisting President Trump at every step of the way is the only way to appease their radical liberal base. Sen. Schumer has already engaged in unprecedented obstruction of Trump’s cabinet secretary nominees, even relatively uncontroversial ones like Elaine Chao for Transportation Secretary.
The pressure on 10 Democrat Senators from states won by Trump in 2016 and who are up for election in 2018 will be intense, from both sides. For example, Senator Claire McCaskill represents Missouri, which voted for Trump over Hillary Clinton by a 19-point margin. Yesterday, she tweeted: “We should have a full confirmation hearing process and a vote on ANY nominee for the Supreme Court.” Yet, facing backlash from her liberal supporters, she soon clarified: “I support requiring a 60 vote margin for all Supreme Ct nominees.” Other Senate Democrats are making similar statements, calling for a vote to deflect criticism, while not being clear whether they support a filibuster or not.
Liberals like to claim that this Supreme Court seat was “stolen” and that no Trump Supreme Court nominees should be confirmed, just as Judge Merrick Garland was not confirmed in 2016. In holding the Supreme Court vacancy for the next President, Majority Leader McConnell was allowing the American people to speak on who the next Supreme Court justice should be, following the advice of many Democrat Senators in previous election years, such as Senators Biden and Schumer.
It is worth remembering that Senator McConnell took this approach in deference to the American people not knowing who the next President would be and in full assurance that if Hillary Clinton won the election, she would nominate someone even more liberal than Judge Garland. And in the weeks leading up to Election Day, when every political expert said that there was no way for Secretary Clinton to lose the election and now-President Trump was significantly down in the polls, Senator McConnell did not waiver and decide to confirm Judge Garland in fear of the radical liberal whom President Clinton would nominate. Instead, he stood firm to his principles and allowed the American people to speak. 21% of voters said the Supreme Court was a major factor in their decision on Election Day, and those voters supported Trump 57% to 40%.
Some liberals are reading the political situation correctly and urging Senate Democrats not to obstruct Judge Gorsuch’s nomination. Democrat North Dakota Senator Heidi Heitkamp said that Trump’s nominee should “absolutely” get an up-or-down vote instead of being filibustered. They recognize that Trump, and his nominees, enjoy popular support and that Americans of all political camps are tired of political games in Washington. After all, holding an up or down vote on judicial nominees was the Senate’s duty and a key pillar of our constitutional system in 2016, according to Democrats and liberals.
But what will Senator Schumer do? Will he follow Senate tradition and his own views from 10 years ago, or will he cave to his liberal base and oppose literally anyone nominated by Trump?
Democrats already lost a substantial portion of their traditional base in 2016: more moderate, blue-collar workers in the middle of the country who feel ignored and patronized by Washington. Obstructing—and even worse, attacking—an outstanding nominee like Judge Gorsuch will only further alienate those hard-working Americans who have lost faith in the Democratic Party to represent their interests. By caving to the perpetually outraged liberals who increasingly control the Democrats, Senator Schumer will damage not only the Senate and its traditions of cordiality but also moderates and Senators from the 10 “Trump states” within his own party.
Elliot S. Berke is the President of the Republican National Lawyers Association. He serves as Managing Partner of Berke Farah LLP, a political law boutique law firm in Washington, DC. He was Counsel to the Speaker of the House in 2006, where he also served as the Speaker’s principal policy advisor on the Voting Rights Act Reauthorization.