“I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.”
That ringing endorsement of the president’s Supreme Court nominee, Neil Gorsuch, didn’t come from a conservative think tank or a Republican lawmaker, but from Neal Katyal, a former solicitor general in the Obama administration and law professor at Georgetown University. Mr. Katyal’s point is important on multiple levels: first, and most obviously, that support for a judge nominated to serve in such a role can, and should, transcend partisan politics. But also, he notes the critical role of an independent judiciary in upholding the rule of law. I support each assertion.
With partisanship near an all-time high on Capitol Hill and growing divisions in our communities, it might be difficult to recall that Supreme Court nominations weren’t always this way.
Justice Antonin Scalia, the man whose seat Judge Gorsuch was nominated to fill, himself was unanimously confirmed (98-0) in 1986. This wasn’t because conservatives held every seat in the United States Senate, but because lawmakers evaluated on merit, knowing that they weren’t voting for a “Republican Judge” or a “Democrat Judge” but rather an independent jurist. Indeed, Judge Gorsuch had a similar experience with bipartisanship in 2006 when he was unanimously confirmed to serve on the Tenth Circuit Court of Appeals – including 12 Democratic senators still serving in the Senate today, led by Minority Leader Chuck Schumer, D-New York.
Ensuring faith in our governing institutions should be a priority of every elected official regardless of political affiliation. It’s with this belief in an independent judiciary above the politics of Congress that, last year, I spoke in favor of hearings for President Obama’s nominee for the Court, Judge Merrick Garland, a qualified jurist who deserved the full consideration of the Senate.
But now is not the time for “tit-for-tat” politics. The stakes are too high. As lawmakers, we swore an oath to carry out the duties compelled by the Constitution and to put people before politics.
The reality is, the extended vacancy on the Court following the passing of Justice Scalia threatens the consistency of federal law. The judgement provided by our nation’s highest court delivers a finality to questions regarding constitutionality and without a complete bench, we risk lowering trust in this essential institution and forever damaging the spirit of an independent judiciary.
That’s why I am disappointed by Sen. Schumer’s announced intent to filibuster the Gorsuch nomination, requiring 60-votes to overcome. Not only does this faux-filibuster entrench the politicization of the process he bemoaned in the last Congress, it also pushes Majority Leader Mitch McConnell, R-Kentucky, one step closer to invoking the “nuclear option” and replacing this higher threshold with a simple majority.
While Gorsuch’s appointment will not change the ideological balance of the court, the process by which he’s confirmed will set the precedent for future appointments. If Senate obstruction leads to a rule change, the next vacancy will be filled by a majority vote, leaving the minority party without a voice for compromise. Schumer’s gamesmanship now will mean an institutionalization of partisanship moving forward -- hardly what the American people want or deserve.
Regardless if you support the president who makes the nomination, or voted for the party that holds the Senate majority, each nominee who has been put forward, vetted and assessed deserves a fair vote. It is vital to our system of government to have a strong independent judiciary where good people are willing to serve, put aside their personal politics, and provide an unbiased interpretation of the law. Our Supreme Court Justices should remain faithful to the law while interpreting the enduring principles in the Constitution and applying them to today’s problems.
I urge my colleagues in the Senate to stand on the right side of history in valuing an independent judiciary above partisan politics, and to give this jurist a full hearing and an up-or-down vote.