About an hour after Supreme Court Justice Antonin Scalia’s death was announced in February 2016, Senate Majority Leader Mitch McConnell said the Senate would not hold a hearing, let alone a vote, on anyone President Barack Obama nominated as a replacement until after the presidential election.
Now that President Trump has nominated conservative appellate judge Neil Gorsuch to replace Scalia, McConnell, ever the hypocrite, wants the Senate to show him “fair consideration and respect.”
Some liberal groups want Democrats to mount a filibuster as payback to Republicans who blocked Obama’s nominee, Merrick Garland, last year. While such just rewards for the Republicans’ sleazy maneuver last year is understandable, that is not a path Democrats should follow.
Gorsuch deserves a Senate hearing and vote — just like Garland should have received. Yes, it is despicable that the Republicans hijacked this Supreme Court seat. It is even more outrageous that the Republicans were ultimately rewarded for such obstructionism.
McConnell’s bogus argument in not giving Garland a hearing was that the American people should have a voice in the process. Tell that to the more than 65.8 million Americans who voted for Hillary Clinton — nearly 3 million more than voted for Trump.
But despite Trump’s made-for-TV, prime-time announcement of his Supreme Court pick, complete with dueling finalists, this is not a popularity contest. Considering a Supreme Court nominee is one of the more serious obligations of the Senate. That’s why the hearings for Gorsuch should be thorough, rigorous, and fair.
Gorsuch, 49, a Harvard Law School graduate who was appointed to the U.S. Court of Appeals for the 10th Circuit in 2006, is said to be more conservative than Scalia. He has backed religious rights in some court cases, and has written a book that opposes euthanasia and assisted suicide. Senators will want to probe him on hot-button issues like abortion, same-sex marriage, gun control, campaign finance reform, and religious freedom.
But given Trump’s early run-in with the federal courts over his refugee ban, senators should also ask Gorsuch how the Equal Protection clause applies to noncitizens seeking to enter the United States, and how the courts should respond if a president refuses to comply with a court order.
Given Trump’s unresolved business conflicts, senators should seek Gorsuch’s views on how the Constitution’s emoluments clause applies to presidents.
Considering Trump’s constant attacks on the media and previous threats to loosen libel laws, it would be helpful to hear where Gorsuch stands on the First Amendment, which not only applies to journalists but guarantees everyone freedom of speech, the right to peacefully protest, and religious freedom.
Given the civil rights record of Trump’s attorney general nominee, Jeff Sessions, it would also be helpful to hear Gorsuch's views on voting rights and voter suppression.
The politics of the Supreme Court have become more evident over the years. America needs Supreme Court justices who are independent, fair, avoid ideology, and will protect the Constitution.