The smartest move the Trump administration has pulled since winning the November election was nominating Neil Gorsuch to the U.S. Supreme Court.
Gorsuch is, by all measures, the most confirmable Supreme Court nominee since Merrick Garland. He’s an Ivy League grad and former Supreme Court clerk. He is a respected member of the Tenth Circuit Court of Appeals. He is an imminently qualified jurist who clerked for two Supreme Court justices. Gorsuch is also the author of a number of decisions regarding religious imposition and civil rights that have significantly influenced conservative Supreme Court jurisprudence.
He is also more conservative than the late Justice Antonin Scalia whom he was appointed to replace—which is why it matters that Democrats fight like hell to block his nomination.
If we’ve learned anything in the last eight years, it is that unabashed political obstruction has no electoral consequence. Republicans sat on Garland’s nomination for almost an entire year. It was a risky gamble, but it paid off. Democrats should take a page from that playbook and refuse his nomination.
There are, of course, many substantive reasons to obstruct the Gorsuch nomination. First is our unfolding constitutional crisis, where the executive branch is continuing to enforce its immigration and detention executive order despite multiple court orders telling it to stop. There is nothing in Gorsuch’s record as a judge that suggests he would push back on that overreach. In fact, if Gorsuch’s past admiration of the Nixon administration is any indication of his current political views, then there’s every reason to believe he would happily hand the Trump administration as much power as it would like.
Gorsuch is also wrong on religious imposition jurisprudence. On the Tenth Circuit Court of Appeals, Gorsuch is perhaps known most for his concurring opinion in Hobby Lobby v. Sebelius. That opinion set the stage for expanding corporate legal protections by letting for-profit companies claim religious objections to regulatory schemes they believe to be too burdensome. The idea that corporations can launch religious objections to regulations they don’t like, most notably the Affordable Care Act’s birth control benefit? Go ahead and thank Neil Gorsuch for that idea.
Like his intellectual equivalent currently on the Roberts Court, Justice Samuel Alito, Gorsuch offers his hyper-conservative and contrarian opinions with not so much a smile as a smirk. As a federal appeals court judge, Gorsuch repeatedly gave law enforcement officers broad immunity from excessive force claims, arguing the only cops who should be punished are those who are “plainly incompetent.” He even ruled in favor of an officer who put a 9-year-old boy in an arm twist lock. In that opinion, Gorsuch stated that it was “regrettable” that the police officer in the case responded to the child with “physical force, handcuffs, and arrest” to control the 67-pound boy. But Gorsuch then quickly noted the “equally regrettable … disrespectful, obdurate, and combative behavior of that nine-year-old child” and absolved the officer of any wrongdoing in the case.
In other words, he displays the worst of Scalia given his jurisprudential history. He reflects the worst of Justice Alito, given his apparent unwillingness to place his own ideology in the arc of history that is supposed to bend toward justice. And he is like the worst of Chief Justice John Roberts in his ability to sell the Senate and likely the rest of the United States that he is a moderate choice.
And that’s what makes him the perfect choice for the Trump administration.
Let’s be crystal clear here. Since winning the election in November, Trump and his associates have engaged in what can only be described as a shock and confusion campaign, dropping blatantly unconstitutional executive orders and actions supported by strategic misinformation.
To believe the nomination of Neil Gorsuch is not a part of that strategy is naive. He is the conservative equivalent of the “Justice Dad” meme that Obama tried with Garland. He is a nomination designed to test Democrats’ will to fight, one Trump made in the height of the chaos and protests surrounding his immigration executive order, and as opposition to his cabinet nominees amplified. Trump’s team is counting on Democrats and the public to be overwhelmed and unable to resist each executive overreach and crony cabinet choice.
Democrats have a problem here. By not being willing to play hardball with Senate Republicans during the Garland nomination fight, they set the stage for making a fool’s choice. Do they try and block Gorsuch, whose nomination seems to be set up specifically to test their resolve? Or do they launch a nomination blockade here, knowing that Trump and Senate Republicans have promised they will do everything—including nuking the filibuster—to get Gorsuch on the bench?
It’s a terrible choice with no winners, and I have no good answers. All I know is that with Gorsuch comes a guarantee that the Supreme Court remains cemented in a right-of-center jurisprudence that is bad for civil rights and justice. I also know that like Alito and Roberts, should Gorsuch be confirmed, he is likely to be on the bench for a good long while. While this means the conservative wing of the Court is with us to stay for decades, the effect that wing has on the law will likely last centuries.