Hearings on President Trump’s Supreme Court nominee begin this week. By all accounts, his choice, Neil Gorsuch, is highly qualified for the position. Those on both the right and left speak to his intelligence, his considerate approach to legal analysis, and the care with which he approaches each case. Under normal circumstances, he might sail to an easy confirmation. Unfortunately, the Supreme Court appointment process has become anything but normal.
The initial break can be traced as far back as 1987 — when Democrats rejected Ronald Reagan’s nomination of Robert Bork. Over the following decades, the appointment process to the high court grew tenser and more partisan, but even with mutual bruised feelings, nominations managed to proceed reasonably smoothly.
Last spring, conditions changed dramatically. To fill the vacancy created by the death of Justice Scalia, President Obama chose Merrick Garland — a “consensus nominee” in the words of Republican Senator Orrin Hatch. Like Gorsuch, Garland was eminently qualified and highly regarded by all sides. Moreover, unlike Gorsuch — who would be among the most conservative judges on the Court — Garland is near the middle of the ideological spectrum.
However, Senate Republicans refused to even consideration Garland’s nomination, creating a vacancy that has now lasted over a year. This was within their power, since no codified rules exist to ensure a vote. But it was a sharp break from centuries of tradition, in which presidents have been granted the courtesy of a vote on their nominations.
Now, Democrats are faced with a dilemma.
Should they model the behavior they asked Republicans to employ last year and allow a vote on Gorsuch? Or should they utilize their own tool of resistance — the filibuster — to protest the boundary-breaking behavior of the Republicans? The maxim that two wrongs do not make a right urges in one direction. But as tempting as this logic may be, it should be rejected.
If it was purely a matter of vindictiveness, or of power politics, a filibuster truly would be just another wrong. But it would instead be an effort to hold Republicans accountable for breaking the basic norm: that sitting presidents have a right and responsibility to fill vacancies that arise during their terms in office
That tradition is essential, and is worth defending. Its chief function is to protect the legal realm from the full brunt of partisan battles. The work of the Supreme Court is, of course, political in nature. It would not instill such deep feelings on both sides of the political divide if it were not. But the Court carries a special obligation to safeguard the rule of law. In that task, its independence from the political branches is essential. And such independence is precisely what the breaking of these norms endangers. In the world envisioned by the Republican blockade of Merrick Garland, qualifications for the job are reduced exclusively to partisan interests, and the Court becomes nothing more than one more football to be kicked around in the search for political dominance.
Now, more than ever, Democrats should refuse this logic.
The presidency of Donald Trump poses significant questions about core principles of American democracy: checks and balances, and the separation of power. A number of lawsuits have already been filed challenging his expansive interpretation of executive power and his administration’s apparent willingness to resist direct court orders. At a moment, when our core Constitutional values may soon be trusted to the care of the Supreme Court, Democrats must challenge the idea that long-standing normative protections against abuse of power can be broken without consequence.
Judge Gorsuch is an excellent jurist, and deserves a fair hearing. If another vacancy opens on the Court, Democrats should give him all the respect and due consideration that he deserves. Until that day, however, they cannot and must not permit a vote.
Olney is an assistant professor in the Department of Political Science at the University of Texas Rio Grande Valley.