The problem with Neil Gorsuch’s nomination for the Supreme Court is not Neil Gorsuch. He is, by all accounts, a brilliant jurist and a kind man. But he is an extremely conservative judge at a moment when an extremely conservative judge makes a mockery of the popular will. For the good of the country and the Court, this moment demands a compromise nominee, and Gorsuch is not that.
Antonin Scalia’s seat came open under a Democratic president and a Republican Senate. This should have led to a centrist nominee. And President Barack Obama tried to offer one: Merrick Garland, who had previously been suggested for the Court by Republican Sen. Orrin Hatch. Republicans did not oppose Garland. They refused to consider him, or anyone else, for the opening. They insisted that no opening on the Court could be filled in an election year — an absurd faux principle which implies that vacancies on the Court must be left unfilled fully 50 percent of the time.
Having blocked efforts to replace Scalia under Obama, Republicans were relieved when Trump won the Electoral College. But Democrats decisively won the popular vote and gained seats in the Senate. I do not want to overstate this: US elections are not decided by simply tallying up votes. But though the public will doesn’t decide elections, it should still weigh on those who hold power. This is a time for a center-right nominee, just as Obama put forward a center-left nominee in Garland.
The choice is all the more important because the Supreme Court is, itself, a strange and undemocratic institution. It is insulated from popular opinion, and judges serve for life. Forcing it unnaturally out of step with the public is bad for both the Court and the country.
Senate Democrats have the power to filibuster nominees to the Supreme Court. I don’t agree with those who think Democrats should filibuster anyone who isn’t Garland, as Sen. Jeff Merkley is threatening. But Democrats should insist on a compromise nominee — it would be wise of them to offer a realistic list of more centrist candidates — and use the filibuster to give their position teeth.
It’s true that Republicans could eliminate the filibuster with only 51 votes, but it’s not clear why that’s relevant. If the Supreme Court filibuster will be eliminated the moment it’s used, then it’s a fiction, and there’s little cost to seeing it unmasked as such. If Republicans would prefer to destroy the filibuster than make any accommodation to the majority of voters who wanted a Democratic president to be making this pick, then that’s their prerogative — at least the Democrats’ base will know their legislators did their best. Democrats need not be in the business of protecting a filibuster they cannot use.
It’s a mistake to see Supreme Court nominations as about the individual’s résumé rather than the country’s wishes. If the question is whether Gorsuch is qualified to be on the Court, of course he is. But that’s not the question. The question is whether Gorsuch should be on the Court — whether he is the right pick for this moment, and for the decades in which he’s likely to serve. He is not.
Republicans lost the popular vote in the presidential election preceding Scalia’s death. They lost the popular vote in the presidential election after Scalia’s death. The will of the people might not be all that matters in politics, but nor should it be meaningless. This is a time, if ever there was one, for a compromise nominee, and Gorsuch is not a compromise nominee. Republicans do not need to nominate a liberal, but Democrats should insist they nominate a justice more in the mold of Anthony Kennedy than Scalia.
The Supreme Court is undemocratic enough as it is. It does not need to be made more so.