The Judiciary

Gorsuch nomination a once-in-a-generation test to stop GOP control

On Monday, the Senate opened the most important confirmation hearing in a generation — not because Judge Neil Gorsuch must be confirmed to restore the Supreme Court to nine, but because he must not be confirmed.

We need to stop talking about the Gorsuch nomination as if it is about a single seat on the Supreme Court. This nomination, this hearing, is about a precedent that if allowed to stand will tarnish the legitimacy of our highest court for generations to come.  

{mosads}If Republicans get away with the judicial coup they launched last year when they refused to grant Judge Merrick Garland a hearing, such a cynical political ploy could become commonplace. The GOP will apply it to lower courts. They will refuse to grant a hearing in the year before a midterm, or during the two years of a presidential race. The Supreme Court will become a permanent pawn of the GOP.


The only opportunity to reject the GOP’s cynical political ploy and its resulting precedent is with this nomination. This seat. Right now.  

Democrats cannot be afraid to filibuster. It may be their only option.

Any talk of cooperating on this nomination to prevent Senate Majority Leader Mitch McConnell from resorting to the “nuclear option” misunderstands the significance of this nomination. Dems cannot make a deal with coup plotters and expect anything good to come of it. They must do everything in their power to demand that President Trump nominate a consensus candidate.

Gorsuch may be a fine judge. A qualified one even. But, this confirmation process is not about him. It is about the legitimacy of the Supreme Court.  

Gorsuch, a firmly conservative and non-consensus nominee, cannot restore the legitimacy of the court.  And any senator who suggests Trump’s electoral victory confers a “superlegitimacy” on Judge Gorsuch conveniently forgets that Trump has no mandate from the American people, having lost the election by more than 3 million votes.

Judge Gorsuch himself should understand the precedent his nomination risks setting and not hide behind statements about the need to avoid politics. He should have refused the nomination. He reportedly called Judge Garland after he was nominated. If he had truly understood what is at stake, he would have called Judge Garland to say he had turned down the nomination in solidarity — not with Judge Garland personally, but with the Supreme Court and the U.S. Constitution that he says he holds in such high regard.

But he didn’t.

Now, Senate Democrats, independents and any Republicans who still revere our highest court are the only ones left who can restore the legitimacy to the Supreme Court. Democratic senators on the Judiciary Committee face the ultimate test of their convictions with this nomination. They have a once-in-a-lifetime opportunity to restore the legitimacy of the Supreme Court. I hope they take it.

Russ Feingold considered six Supreme Court justices as a member of the United States Senate and was a member of the U.S. Senate Judiciary Committee for 16 years.

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The Judiciary