'Garland's Revenge' must wait another day

It has long been our position that the Senate should show deference when it comes to approving the president’s selection of cabinet members and judicial nominations, including appointment to the Supreme Court. Short of any evidence of ethical misconduct or of behavior or attitudes that fall outside mainstream American democratic values, the Senate should provide consent.

While we await the hearing process to fully evaluate his background, at first glance it appears President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, makes the grade. Appointed to the United States Court of Appeals for the 10th Circuit by President George W. Bush in 2006, Gorsuch has proved to be a constitutional originalist in the spirit of the man he would replace, Justice Antonin Scalia. And, like Scalia, he has a reputation for writing interesting and even entertaining opinions and dissents.

While his legal rulings often do not line up with the ideological bent of this newspaper, it is Trump’s choice to make. He won.

Of course, President Barack Obama also won election, twice, and there’s the rub. When Scalia died one year ago, it was Obama’s vacancy to fill. His choice, Judge Merrick Garland, deserved a hearing and a vote. In a political power play, the Republican majority in the Senate refused to provide either, holding the seat open until the presidential election. It set a terrible precedent they may have to live with sooner rather than later.

Many on the left urge the Democrats to do all they can to block Gorsuch, a move that might be labeled “Garland's Revenge.”

The Democrats shouldn’t and probably couldn’t.

Republicans control the Senate 52-48. Democrats could pursue a filibuster approach, requiring the traditional 60 votes to approve a Supreme Court candidate. But the Democratic leadership may not be able to block Gorsuch from getting 60 votes even it wanted to. Ten Democrats up for re-election in 2018 are from states carried by Trump. Politically, this could be the wrong line in the sand for them.

Even if Democrats could find the votes to deny a filibuster-busting 60 votes, the Republican majority could opt for the so-called “nuclear option,” and change the rules to end the practice of needing 60 votes. Democrats provided that opening in 2013. In control then, they removed the 60-vote procedural hurdle for lower-court judicial nominees and cabinet appointments. Republicans could say with that precedent set, it is a small step to also revise the rules for appointing a Supreme Court justice.

In any event, this appointment does not change the ideological breakdown of the high court; a conservative jurist will fill the vacancy for a justice known for the same predilection.

Circumstances may change significantly before the next vacancy on the Supreme Court, perhaps a vacancy that could alter the ideological makeup.

In seeking to regain control of the Senate, Democrats could well make the future of the Supreme Court a rallying point. That may be the time to “Remember Garland!” If Democrats regain the Senate in 2018, it would be their prerogative whether to fill any court vacancies during the second half of Trump’s term. Remember, the Republicans set that precedent with Obama. In such a circumstance, the Democrats could refuse to act on any Trump nominees, and await the 2020 presidential election.

Is this approach ideal? Hardly. But perhaps if both the major parties feel the sting of such a political hardball, the practice may be abandoned for future presidencies.

In the meantime, Democrats should cooperate in the process of filling the existing vacancy. The Supreme Court has been understaffed at eight long enough.

The Day editorial board meets regularly with political, business and community leaders and convenes weekly to formulate editorial viewpoints. It is composed of President and Publisher Tim Dwyer, Editorial Page Editor Paul Choiniere, Managing Editor Tim Cotter, Staff Writer Julia Bergman and retired deputy managing editor Lisa McGinley. However, only the publisher and editorial page editor are responsible for developing the editorial opinions. The board operates independently from the Day newsroom.


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