When Supreme Court nominee Judge Neil Gorsuch chose the words “disheartening” and “demoralizing” to describe attacks on the integrity of the federal judiciary this week, many took them to be a cautious but not-so-subtle message to Senate Democrats.
Navigating the nor’easters of Washington’s confirmation process means winning over at least eight Democrats. And with those two words, Judge Gorsuch appeared to be distancing himself from President Trump, carefully asserting his own independence and demonstrating a willingness to stand up to the man who nominated him.
Yet even before the saga over the meaning and original intent of the nominee’s words began to unfold on Thursday – with President Trump arguing that the media was misinterpreting his words – many liberals were already making this case for the deeply conservative jurist, calling Mr. Trump’s nominee one of the most independent-minded judges in the country.
It is a difficult pivot for many Democrats to make. Republican senators’ refusal even to schedule a hearing for President Obama’s nominee, Judge Merrick Garland, last year still rankles. But some are wondering how far to take the fight when Gorsuch, in some ways, presents a relatively attractive conservative option.
“Of all the judges President Trump could have nominated, Gorsuch seems to me as good as anybody, liberal or conservative, who would stand up to unlawful actions by the Trump administration, if need be,” says Daniel Epps, a professor at Washington University Law School in St. Louis, who puts himself on the liberal side of jurisprudence.
“He’s someone who seems to believe in a fairly robust role for the judicial branch in checking the legality of the actions of the other branches,” adds Professor Epps, who, like Gorsuch, once clerked for Supreme Court Justice Anthony Kennedy. “So there’s reason for optimism, I think, in that he’s not going to just be a reflexive vote for conservative opinions in every case.”
Hints of independence
Like the late Justice Antonin Scalia, whose seat he will take if confirmed, Gorsuch has often ruled in favor of criminal defendants over the government – rulings not uncommon for strict “textualists” and their razor-close readings of the statutory texts.
And unlike many other federal judges, Gorsuch has been a fierce critic of the so-called Chevron doctrine, which holds that judges should generally defer to the executive branch and its agencies when they have any reasonable interpretation of federal statutes.
“That basically gives people comfort that didn't have comfort,” said Sen. Joe Manchin, the conservative Democrat from West Virginia after meeting Gorsuch. “That has helped him” in his quest for confirmation, he said.
Yet Gorsuch has come to Washington at a rancorous political moment and will face vehement Democratic opposition.
“Certainly, the base of the Democratic party is saying, ‘You absolutely must stand strong against Trump’s nominees, even if you don’t have the numbers,’ ” says F. Michael Higginbotham, the Joseph Curtis Professor of Law at the University of Baltimore School of Law. “What kind of message does it send to the Republicans, and to the country, if there are then no political consequences, if you believe what the Republicans did to Judge Garland was wrong? And you’re not willing to stand up to that?”
Indeed, many Democratic senators believe the Supreme Court seat was stolen last year, when Senate Republicans refused to even hold a hearing for Judge Garland for 293 days.
“There’s no doubt that Judge Gorsuch is well qualified and a person of integrity,” says David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law in Philadelphia. “But my own personal view is that liberal Democrats who think that’s good enough for him to get a lifetime appointment on the Supreme Court are basically rolling over and playing dead in a game in which Republicans are playing in a very dirty way.”
Or, as Dahlia Lithwick, a senior editor at Slate put it recently, it would be like “holding out a cupcake at a knife fight.”
For them, the perfect scenario would be Democrats blocking Gorsuch’s nomination, forcing Trump to come back with a more moderate nominee – like Garland.
More battles ahead?
It’s an unlikely gamble, and one with profound risks, however, many experts say.
Republicans could nix the cloture rule, the basis for the filibuster and the 60-vote threshold to hold a vote, allowing Gorsuch to join the high court with only 50 votes. That could fundamentally undermine the Senate’s larger role as a body that demands bipartisan compromise.
Moreover, looking ahead to possible Supreme Court retirements, Trump could easily appoint a much more hard-line conservative, leaving the Supreme Court with a five- to six-seat majority that could last a generation. That is a more important battle, some say.
“This is part of the strategic calculus that makes me think this is such hard question,” says Epps at Washington University. “On the one hand, Senate Democrats can say, ‘What McConnell did with Garland was just ridiculous.’ But you’ve got to be thinking ahead to the next battle. And, yeah, in a world in which the filibuster has been nuked, then maybe it will be a lot easier for Republicans to fill any vacancy with whoever they want.”
Gorsuch is facing a perilous moment in his confirmation. Trump this week lashed out against the judicial branch, demeaning the district court judge who first blocked his travel ban, calling him a “so-called judge” and his opinion “ridiculous.”
Then the president lashed out against the Ninth Circuit court panel hearing his emergency appeal, calling its proceedings “disgraceful” – even before it ruled 3-to-0 on Thursday to continue to block his order.
The White House insisted on Thursday that Gorsuch’s words, “disheartening and demoralizing,” were not referring to the president’s outburst, even though at least two senators and a White House official said they were.
One of the senators, Nebraska Republican Ben Sasse, even said the nominee “got pretty passionate” about Trump’s attack of the judiciary.
"People all across the political spectrum should love the fact that he's going to be a warrior for a constitutional system of executive restraint and limits," Senator Sasse said.