Published by The Lawfare Institute
in Cooperation With
Neil Gorsuch is an eminent jurist who is undoubtedly qualified to be an Associate Justice on the Supreme Court. So too is Merrick Garland. In the law of the jungle that now governs the confirmation process, where principle is absent and power politics alone is what matters, Gorsuch will likely make it to the Supreme Court for the same reason that Garland did not: The Republicans controlled the Senate last year when Obama was President, and continue to control it now when Trump is President. Elections have consequences and the Democrats lost the key ones.
If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.
The Democrats have no realistic chance of stopping Gorsuch. Nonetheless, in order to appease their base, and out of justifiable anger at Garland’s not receiving even a hearing, they will try hard to do so. And they will likely do this, as is typical in this context, with hyperbolic name-calling, mud-slinging, and multiple distortions of the record of a serious man.
There’s a partial alternative, a means of lodging an objection to what happened to Garland that ropes into the process a perhaps-unlikely ally: one Neil Gorsuch himself.
The template for this model was written by Senator Lindsey Graham during the nomination of Elena Kagan a few years ago. Graham asked Kagan a series of questions designed to highlight the Senate’s ill treatment during the Bush administration of Miguel Estrada at the time of his nomination to the D.C. Circuit. Estrada had written a powerful letter in support of Kagan, and Graham got Kagan to go on the record about him and his qualifications:
GRAHAM: Do you know Miguel Estrada?
KAGAN: I do.
GRAHAM: How do you know him?
KAGAN: So Miguel and I classmates at Harvard Law School, but we were more than classmates at Harvard Law School. . . . Miguel and I were required to sit next to each other in every single class in the first year. And I can tell you Miguel takes extraordinary notes. So it’s great. Every time you miss something in class, you could just kind of look over and—but that’s how I know Miguel. And we’ve been good friends ever since.
GRAHAM: What’s your general opinion of his legal abilities and his character?
KAGAN: I think he is a great lawyer and a great human being.
GRAHAM: He wrote a letter on your behalf. Have you had a chance to read it?
KAGAN: I did. . . . Senator Graham, I think that those comments reflect what an extraordinary human being Miguel Estrada is. And I was deeply touched when I read that letter, deeply grateful to him, of course, and all of the nice things that he said about me I would say back about him double.
GRAHAM: Well, I’m going to give you that chance, because Miguel Estrada, as most people know—maybe not everyone—was nominated by President Bush to the court, and he never made it. I think it’s one of the great tragedies for the country that he was never able to sit on an appellate court, but that’s the past. And I do think it reflects well of him that he would say such things about you. And quite frankly, I think it reflects well of you that you would say such things about him. In your opinion, Ms. Kagan, is he qualified to sit as an appellate judge?
KAGAN: He’s qualified to sit as an appellate judge. He’s qualified to sit as a Supreme Court justice.
Graham asked her to write her views down, which she did. It all amounted to a powerful rebuke by a Supreme Court nominee of the party that had nominated her for not playing fair in the past with similarly qualified nominees.
There is every reason to think that Gorsuch would respond as Kagan did if asked a similar question, that he would at least implicitly be willing to register a strong objection to the way Garland was treated.
We have a good source on this point: Gorsuch is already on the record in an analogous context about one Merrick Garland.
In 2002, while a Washington attorney, Gorsuch wrote an op-ed with UPI complaining that John Roberts and Merrick Garland had been treated unfairly by the Senate in the long delays they faced before receiving hearings and votes to be judges on the D.C. CIrcuit. He wrote: “Politicians and pressure groups on both sides declare that they will not support nominees unless they hew to their own partisan creeds. When a favored candidate is voted down for lack of sufficient political sympathy to those in control, grudges are held for years, and retaliation is guaranteed.”
Of Garland particularly, he said:
Meanwhile, some of the most impressive judicial nominees are grossly mistreated. Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton's solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving "hot-button" issues. As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. Roberts, nominated almost a year ago, still waits for a hearing—and sees no end to the waiting in sight. In fact, this is the second time around for Roberts: he was left hanging without a vote by the Senate at the end of the first Bush administration. So much for promoting excellence in today's confirmation process.
Garland’s reputation is greater today than it was even when Gorsuch wrote these words. And although Gorsuch would not be Trump’s nominee if Garland were confirmed, there is no reason to think he has changed his mind and would now give succor to treatment of the man last year that is far more extreme than the in-retrospect minor delays about which he once complained. Gorsuch is, after all, a principled jurist. By giving him a chance to demonstrate that he understands that he is the innocent beneficiary of crass power politics. Democrats can recruit him to jointly—as Graham and Kagan did—make a powerful statement about how nominees should and should not be treated.
There may well come a time when it is perfectly appropriate for Democrats to retaliate for what Republicans did to Garland: As one of us, writing with (of all people) Miguel Estrada put it at the time the Republicans began their long stall of Garland’s nomination, there are no rules or norms that govern this process any more and anyone who talks in the language of principle is being disingenous:
In a world in which those norms do not have force, there is no reason in principle to demand that Republicans move a late-stage nominee from Obama.
Lest any reader think we are making a partisan point here, we hasten to emphasize that if the Senate and the presidency flip hands in November, we also think there will be no principled basis to demand that a Democratic Senate ever consider a nominee by President Trump, Cruz, or Rubio. The decision on the part of a future-Majority Leader Charles E. Schumer at that point is that a 4-to-4 court is a better long-term equilibrium for him than confirming a nominee of the other party will be exactly as defensible as current-Majority Leader Mitch McConnell’s decision today that a 4-to-4 court is a better short-term equilibrium for him than confirming a nominee from Obama.
Whatever elevated rhetoric anyone invokes to suit his or her convenience, the fact is that our real judicial nominations system is now one of raw power and nothing else.
But the moment to retaliate is not when you cannot do so effectively and will end up flailing around with a melange of old ideological arguments and process points about Garland—and then lose because you don’t have the votes to stop the nominee irrespective of your arguments.
Classiness is so rare in confirmation battles that it is actually powerful when it makes a sudden and always unexpected appearance. The Gorsuch hearings are going to be a partisan slugfest. We hope, however, that at least one Democratic Senator will follow the template Lindsay Graham wrote and ask Gorsuch to do as Kagan did. Doing so would interject a small note of dignity into a proceeding that will be dominated by partisan power politics. And it would give Gorsuch a chance, as Graham gave to Kagan, to stand remind the President’s party that while there may be no norms that currently guide senatorial treatment of nominees and that the pieties that Republican senators will be uttering about the Senate’s duty of fairness to qualified nominees are also hollow.