In former times, the confirmation of a nominee for the Supreme Court tended to be a routine affair. If the nominee was at least nominally qualified to sit on the highest court in the land, he was virtually assured of confirmation, regardless of his political views.
As in the case of the late Antonin Scalia, whose seat Neil Gorsuch has been nominated by President Donald Trump to fill. “I was confirmed 98 to 0,” Justice Scalia recalled in 2007 of his confirmation in 1986. “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today. I guess the name of the game’s changed.”
It has. Nobody seems to have any doubts about Mr. Gorsuch’s judicial ability or his personal integrity. But his conservative views have guaranteed that his confirmation process would be a grueling and degrading experience.
That process began months ago, as soon as Mr. Trump announced his choice, whom he has described as “perfect in almost every way” for the court. That endorsement made him instantly unacceptable in virtually every way to the Democrats who sit on the confirmation hearing panel that started proceedings on Monday.
Like Sen. Dianne Feinstein (D-Calif.), who has branded Gorsuch as an extremist on worker protection and women’s rights. As a federal appeals court judge, Gorsuch “has consistently sided with employers and corporate interests,” she said.
Aware that he was guilty until proven innocent (or conservative until proven moderate), Gorsuch launched a lobbying campaign, making “courtesy calls” on 72 senators, mostly Democrats, who will ultimately vote on his nomination. In their offices, he employed his well-known modest charm to try to persuade them that his views, much in line with that of Mr. Scalia’s, do not make him either a Trump acolyte or an ideological ogre.
Now begins the public browbeating, several days of interrogation in which Democratic senators on the Judiciary Committee will take the 68-page questionnaire he filled out (with 20 appendices attached) and over 175,000 pages of records, and attempt to hit him over the head with it.
What do they seek to accomplish? Clearly, this merciless grilling has little or nothing to do with the Constitution, and everything to do with partisan politics. The Democratic senators already know what he stands for — things they don’t like, such as corporate capitalism and traditional values. It’s all there in the documents submitted and they had ample opportunity to find out more during the courtesy calls, assuming they didn’t spend that time pontificating on the Constitution themselves.
Some of them are reportedly still fuming over the Republicans’ decision to refuse confirmation of Merrill Garland, President Barack Obama’s lame-duck appointee. This is their chance for vengeance. They will try to catch Gorsuch in contradictions, embarrass him with revelations from his past (like the former student who this week claimed he insisted to a class that women exploit maternity leave laws), or maybe wring from him some disparagement of the president.
Others will see it as an opportunity to expose him as anti-labor. Perhaps they can extract an admission of judicial error, or at the very least a ruling overturned on appeal. If they get lucky, they might even be able to back him into a corner and have him repudiate some former principle deemed odious to the liberal elites.
They may not harm Gorsuch sufficiently to swing any of the Republicans to their side to vote down his confirmation, but they will have to give him a hard time to appease their constituencies who are demanding they oppose and obstruct anything Mr. Trump proposes.
The entire spectacle is not only demeaning but futile. The Republicans have declared their determination to put Gorsuch on the Supreme Court, even if it means changing Senate procedure to shut down a Democratic filibuster (something the Democrats themselves did in 2013 to circumvent the 60-vote filibuster against judicial nominees except those for the Supreme Court). Gorsuch will be confirmed, one way or another; the question is only how much blood will be spilled along the way.
We do not question the Senate’s Constitutional role in confirming presidential nominees for the Supreme Court. And the public has every right to know who will be sitting in that exalted position, passing judgment on the most important issues of the day, on matters that affect us all.
But it is a role that should be carried out with dignity and fairness. Perhaps you can’t legislate dignity and fairness in such procedures. Neither a ban on demeaning courtesy visits nor a strict time limit on the interrogation of nominees would likely be accepted in the current climate.
If the senators go too far, however, if they are too harsh with Gorsuch, an obviously decent and intelligent man, they will spawn a backlash. And the next Trump nominee for the Supreme Court may not have to endure quite so much.