Gorsuch's nomination is an unlawful power play that must be blocked
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Neil Gorsuch’s nomination to the Supreme Court of the United States must be resisted. Gorsuch himself, his strengths and weaknesses, his judicial philosophies, and his approach to judging are all largely irrelevant to the real issues at stake. Confirming Gorsuch would ratify a constitutional coup and imperil our constitutional democracy.

It would empower an authoritarian president bent on imposing his will on the nation and the judiciary. And it would elevate to the highest court in the land a judge who seems unlikely to provide the independent check on executive power that will be demanded from the Supreme Court in the next four years as never before in our nation’s history.

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It is important to remember that this is not a normal judicial nomination in normal times because we are not living in normal political times. At least three things have occurred over the past year that we have never before seen in American history.

 

First, Merrick Garland, a judicial moderate appointed to the Supreme Court by a president who had been elected by a wide popular-vote margin to a second term in office, was not even given a hearing for almost a year. Instead, the Republican-controlled Senate abdicated its constitutional obligations and defied every political norm and precedent of this country and stonewalled, hoping to gain political advantage in the future. Such a calculation is completely inappropriate in a country supposedly committed to constitutional democracy.

Second, a new president came to power, but not in the usual way. Instead, he did so with the confirmed active assistance of a foreign enemy state and despite the fact that 3 million more voters preferred his opponent. That president now serves in office despite having the lowest approval rating of an incoming president in recorded history. His legitimacy is, at best, precarious.

Third, that same president has spent his first weeks in office running roughshod over nearly every constitutional tradition of this country. He has ignored separation of powers, punished those who disagree with him, bullied businesses, threatened the free press, persecuted religious minorities, damaged our international alliances and ignored our history as an immigrant nation. Again, none of those things is normal for either a Democratic or Republican president. We are facing a unique and unprecedented threat.

In short, this nomination is part of a political power play. The rule of law means nothing, traditions of deference to those who disagree are ignored, and normal procedures are not followed. In response, we can’t afford to follow traditional procedures and offer traditional deference to a judicial nomination. Being reasonable doesn’t work when your adversaries are gutter fighters and the Constitution hangs in the balance. And let’s not forget that the 48 Democratic senators have the moral and political high ground here: They represent far more actual votes than the 52 Republican ones.

The Republican power-play must be resisted or the rule of law itself is at risk. After all, if Merrick Garland can be unceremoniously cast aside, what is to prevent a future Republican-controlled Senate from refusing to confirm the appointees of Democratic presidents forever? If there are no consequences, it would be a rational move. But it would be fatal to our judiciary, our court system, and our Constitution itself.

So the stakes are extraordinarily high. This Supreme Court will be tested perhaps unlike any court in history. The justices will need to hold fast to core constitutional values in the face of unprecedented moves by the executive branch, all designed to shred the fabric of the nation.

What will Neil Gorsuch do when faced with such threats? His record certainly provides insufficient evidence that he would be willing to stand up for the Constitution in the face of runaway executive power wielded in radically destructive ways.

But it all starts with the nomination process itself. Unlawful power grabs cannot be ratified. They must be unmasked and defeated. And regardless of what they think of Neil Gorsuch personally or professionally, every senator—Democrat and Republican—should reject this schoolyard bullying exercise of pure political power and stand up for the rule of law. They should tell the President that the only person he can legitimately nominate at this moment is Merrick Garland.

Until that happens, no judicial nomination should move forward. Our constitutional and political traditions demand that we not enable a constitutional coup.

Paul Schiff Berman is the Walter S. Cox Professor of Law at George Washington University Law School and the author of Global Legal Pluralism, published by Cambridge University Press in 2012.


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