Commentary: Gorsuch rulings will be tainted

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Neil Gorsuch will be seated on the Supreme Court only because of an end run around the Constitution and its requirement that the Senate provide "advice and consent."

At his nomination hearing, Chief Justice John Roberts famously compared a judge's role to that of a baseball umpire whose job is to solely "call balls and strikes." And it is a baseball analogy that helps explain the shadow that will hang over current nominee Neil Gorsuch if he should ascend to the Supreme Court.

The summer of 1961 had been an exciting one for baseball, as Roger Maris chased Babe Ruth's record of hitting 60 home runs in a single season. In July of that year, though, the baseball commissioner announced that because the season was now 162 games long, he would not consider the record to be broken unless it was done within 154 games, the season's length when the Babe set the record. As history played out, Maris did not hit his 61st homer until the final game, and his record forever became associated with having an asterisk after it as a way of saying his achievement should not be given its full due.

Gorsuch is about to become our justice with an asterisk. This is not because of his abilities or intellect. His credentials are sterling, his manner courtly, his personality likeable. Under normal circumstances, Gorsuch's name would not bear the curse of the asterisk. Indeed, if Merrick Garland had been confirmed, and a vacancy occurred after Donald Trump became president, even those disagreeing with Gorsuch's judicial philosophy would have acknowledged him a fair choice.

But Gorsuch will be seated on the court only because of an end run around the Constitution and its requirement that the Senate provide "advice and consent." Some argue that since Gorsuch would fill the late Antonin Scalia's seat, we are just exchanging one conservative justice for another. That argument is fundamentally wrong. It ignores the Constitution's anticipation that over the long course of our republic's history the Supreme Court maintains equilibrium and stability through the public's knowledge that parties will come in and out of power and the court's makeup will reflect those changes.

If my party is out of power when a president nominates a new justice, I can retain confidence in the court because I know that the next time my party is in the White House, we will be making the nominations. The refusal to honor this understanding after Garland was nominated brands every future vote by Gorsuch as one that should have been made by an Obama appointee.

One cannot overstate how damaging this action is to a court whose respect depends on the belief that its composition was fairly chosen. While Bush v. Gore was an extremely contentious decision, at least the case was decided by nine justices who had been chosen in accord with the Constitution. One can only imagine the constitutional crisis that would have erupted if the court's membership had been viewed as rigged.

Now, however, if Roe v. Wade is overturned by a 5-4 margin with Gorsuch voting with the majority, it will need to have an asterisk next to it saying, "Result likely would have been different if the Republicans had honored the Constitution." The right to gay marriage gets reversed 5-4? Asterisk. A 5-4 court upholds voter- identification laws that disproportionately affect minority voters? The Maris effect will apply with full force.

The Republicans' refusal to play by the rules thus creates the most troubling question of all: Why should the public give any credence to the court's decisions in these situations when political manipulation of the constitutional process produced the deciding vote?

The White House might argue that so long as a justice is "qualified," it should not matter who nominates the person. But the Republicans would not have run out the clock on Garland's nomination if they didn't believe that differing judicial philosophies matter.

The problem, therefore, is not Gorsuch's adeptness at calling balls and strikes; it is that he should not be behind the plate at all. This brings us to what should be the most difficult question for Gorsuch at his confirmation hearing: How can one claim fidelity to the Constitution when one owes his position to others playing political games with the document and refusing to honor the Framers' intentions?

Scott E. Sundby is a professor of constitutional law at the University of Miami School of Law. ssundby@law.miami.edu

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