Amidst media fervor about Russian hackers, Republican infighting and fake presidential wiretaps, a previously controversial situation has quietly evolved beyond notice of the general populace: the nomination for Antonin Scalia’s vacated seat on the Supreme Court. On Monday, United States Court of Appeals Judge Neil Gorsuch began confirmation hearings to fill the seat. Gorsuch, a spiritual successor to Scalia, was nominated by President Donald Trump almost two months ago in a move to restore a conservative majority to the Supreme Court. Although a highly qualified judge, Gorsuch’s path to the Court was made sordid by the obstructionist malfeasance of the Republican party.
Following Scalia’s death in February 2016, then-President Barack Obama nominated Judge Merrick Garland to fill his seat. Garland was picked in part because of his laurels. A well-respected stalwart of the D.C. appeals court, he had been lauded by everyone from Chuck Schumer to Chuck Grassley. He was also picked because he was widely regarded as a moderate—a choice even Republican senators could not reject. But reject him they did. The Republican-controlled Senate majority vehemently opposed Garland’s nomination, with its leaders proposing that the nomination be left up to the next president. Meanwhile, outraged Democrats insisted that the U.S. Constitution necessitates that the Senate at least hear nominations for all Supreme Court nominees. In the end, Senator Grassley, chairman of the Senate Judiciary Committee, played the key role in preventing Garland from getting a hearing, saying, “I would do the same thing in 2020”—implying that his choice to refuse Barack Obama’s nominee for the Supreme Court was wholly nonpartisan. While there is no way to test the veracity of Grassley’s claim right now, we strongly hold that the Republicans erred when they chose not to hold hearings for Garland. It was a sharp break from standard procedure, and held the possibility of making precedent of the unnatural.
Moreover, the Republican argument that placing the Supreme Court nomination on the presidential ballot made for a “more direct democracy” edges on ridiculous. No group of senators gets to decide when the nation should act like a federal republic and when it should act like a direct democracy. We have rules for a reason. Postponing political decisions for the next president to handle is tantamount to negligence, not constitutional bravery. The Senate’s—and indeed all lawmakers’—job is to write policy, not sit around every few years waiting for November. When it comes to many issues like immigration reform or healthcare revitalization, such inaction can result in great harm, especially to those who can bear it the least.
Regardless of how the Republicans mishandled the Supreme Court nomination, Neil Gorsuch has been duly nominated. Democrats should not seek to enact revenge through his nomination by copying the obstructionist policies of Republicans. To repeat an irresponsible decision now would be hypocritical and reprehensible. When a President nominates someone to serve as a Supreme Court Justice, the Senate should advise in good faith to appoint or deny that individual, not grandstand and use the nomination as a bargaining chip. To be sure, Democrats ought to hold a traditional crossfire hearing. They should grill Gorsuch on his weaknesses and hold him accountable to high standards. But they should not obstruct him simply to block Donald Trump. To sink to the low standards set a year earlier would be unacceptable. In addition to recalling Article Two of the United States Constitution, bitter Democrats should keep in mind the maxim of the previous First Lady: “When they go low, we go high.”
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