Opinion: Question for Democrats: Is Gorsuch illegitimate or extreme?


Federal Judge Neil Gorsuch is President Donald Trump’s nominee to fill the vacancy on the Supreme Court left by Antonin Scalia’s death.

In choosing Judge Neil Gorsuch — a credentialed and cerebral conservative — for the Supreme Court, President Trump probably assured himself of success in the Senate even if Democrats remain united in opposition to the nominee. If the Democrats successfully filibustered the nomination, Senate Majority Leader Mitch McConnell always could engineer a rules change that would allow the nomination to be approved by a simple majority.

But within an hour of Trump’s uncharacteristically concise introduction of Gorsuch to the nation, it seemed unlikely that there would be a solid wall of Democratic opposition to Gorsuch’s nomination.

True, some Democratic senators declared their immediate opposition in unyielding terms. But even among the opponents there was a divergence between those who asserted that Gorsuch was extreme — or “far outside the judicial mainstream,” as Sen. Sherrod Brown of Ohio put it — and those who echoed the argument that the Gorsuch nomination shouldn’t even be given the time of day because the vacancy left by the death of Justice Antonin Scalia should have been filled by President Obama.

Sen. Jeff Merkley of Oregon enunciated the latter position even before he knew whom Trump would nominate, telling Politico: “This is a stolen seat. This is the first time a Senate majority has stolen a seat. We will use every lever in our power to stop this.” (After Trump picked Gorsuch, Merkley issued a statement repeating the “stolen seat” charge and suggesting that Trump should have renominated Judge Merrick Garland, Obama’s ”centrist” nominee. But Merkley also chose from Column B, calling Gorsuch “ideological and extreme.”)


But once Democrats focus on whether Gorsuch is “extreme,” they are conceding that his record is up for discussion. That inevitably normalizes the nomination.

Sen. Richard Blumenthal (D-Conn.) said he had “deep, serious concerns about Judge Gorsuch,” and specifically mentioned “privacy rights including women’s healthcare,” an allusion to abortion rights. The notion that Gorsuch harbors the intention of overturning Roe vs. Wade seems to be based mostly on an inference from his writings about assisted suicide — and the fact that Trump promised to appoint “pro-life judges.”

But Blumenthal said that Democrats should give Gorsuch the hearing that Republicans denied Garland so that they can take his measure. It’s likely that Gorsuch will be just as nimble in parrying questions about Roe as Chief Justice John G. Roberts Jr. was at his confirmation hearings.


Other Democrats were even more welcoming. Sen. Joe Manchin (D-W.Va.) said he looked forward to meeting with Gorsuch and urged his colleagues to “put partisan politics aside and allow the vetting process to proceed.”

That’s another way of saying the nomination, while it might turn out to be extreme, isn’t illegitimate. (My guess is that several Democratic senators will decide in the end that it’s neither extreme nor illegitimate and vote for Gorsuch’s confirmation.)

It would take only a handful of Democrats to decide that Gorsuch is not, after all, outside the mainstream to make him a Supreme Court justice — and without the need to do away with the filibuster.

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