JURIST Guest Columnist William G. Ross of Samford University’s Cumberland School of Law discusses the Supreme Court nomination of Judge Neil Gorsuch…

Judge Neil Gorsuch, President Trump’s US Supreme Court nominee, deserves full and fair consideration by Senate Democrats, even though those who are embittered by the refusal of Senate Republican leaders last year to conduct hearings on President Obama’s nomination of Judge Merrick Garland. Although Jeffrey A. Merkley of Oregon is the only senator who has announced that he will oppose any Trump nominee other than Garland, many opponents of Gorsuch’s nomination who are not senators allege that it is illegitimate because they contend that Republicans cheated Garland out of his seat and that Democrats therefore ought to oppose Gorsuch as a matter of priniciple. Such per se opposition to a nominee carries the increasing politicization of the Supreme Court appointments process to a dangerously new level. Opposition to a nomination on purely partisan grounds without consideration of the merits of the nominee himself feeds the growing perception that the court is an entirely political institution, which could become a self-fulfilling prophecy.

The Republican refusal even to schedule hearings on Garland was without precedent. Although this obstruction was not necessarily unconstitutional, it did frustrate the operation of the constitutional process by which the Senate is required to provide “Advice and Consent” to judicial nominees. Since Obama had eleven months left in office when he nominated Garland, he was not the “lame duck” that Republicans claimed and he had a mandate to nominate, just as Senate Republicans had a mandate to oppose the nomination if it had proceeded through the normal confirmation process. Two wrongs, however, do not make a right and Democrats have even less justification than Republicans for denying Gorsuch a fair hearing insofar as Trump has virtually a full term ahead of him.

Unless Republicans exercise the “nuclear option” to break a filibuster against Trump, his nomination will need the votes of sixty senators to reach a vote, eight more than the 52 Republicans who serve in the Senate. Many Democrats are likely to oppose Gorsuch because they strongly object to many of his rulings on politically controversial issues during his decade as a judge on the Tenth Circuit Court of Appeals. This is their prerogative, for ideology is a legitimate factor for senators to consider. At least three senators – Charles E. Schumer of New York, Ronald L. Wyden of Oregon and Elizabeth A.Warren of Massachusetts – already have announced that they will oppose Gorsuch on this ground. Since, however, Gorsuch has such stellar professional credentials and by all accounts has a model judicial temperament, I would hope that more moderate Democrats would be willing to withhold judgment until they have had an opportunity to study his judicial record, examine him during his testimony before the Senate Judiciary Committee and speak with him personally during the private meetings that are a little-known (and arguably dubious) part of the confirmation process. Democratic senators should evaluate Gorsuch on his own merits and not use his nomination as an occasion to vent their frustrations over Trump’s election or to retaliate against the new president.

Since ideology has become an increasingly important factor in Supreme Court nominations during the past half century and since Trump repeatedly vowed during his presidential campaign to nominate a “conservative” justice in the mold of Antonin Scalia, Trump’s nomination of a “conservative” judge like Gorsuch should come as no surprise, even though Trump in many ways is quite “liberal” by Republican standards. Unless Democrats want to cripple the court by leaving it without a full complement of members for at least four years, they should not oppose Gorsuch unless they are convinced that rejection of Gorsuch will somehow result in the nomination of someone they regard as more moderate, a possibility that seems very remote.

The reflexive partisan opposition toward Garland’s nomination last year and Gorsuch’s nomination this year has escalated the already high level of politicization of the Supreme Court appointment process. Although Supreme Court nominations naturally are subject to political scrutiny because the ideological predilections of justices profoundly influence the shaping of American law, opponents of Gorsuch should not allow raw partisanship to blind them to Gorsuch’s professional credentials and temperament or to prevent them from carefully studying his ideology before concluding that it is so extreme that they must in good conscience vote against him. Even then, they should allow the nomination to come to a final vote before the Senate rather than killing it by filibuster.

William G. Ross is the Lucille Stewart Beeson Professor of Law at Samford University’s Cumberland School of Law. He has been writing about the Supreme Court appointment process for more than thirty years.

Suggested citation: William G. Ross, Judge Gorsuch Deserves Non-Partisan Consideration by Senate, JURIST – Academic Commentary, Feb. 3, 2017, http://jurist.org/forum/2017/02/William-Ross-gorsuch-senate-consideration.php