Supreme Court Nominees

It's worth noting that just before the election, several Republican Senators were making the case, that if Hillary won, they'd block any nominees of her's for four years. As the Atlantic reported at the time, More Republicans Are Vowing to Block Clinton's Supreme Court Nominees If She Wins.

Now the debate has shifted, as several Republican senators have suggested simply not allowing any Democratic selections to the Supreme Court at all. Late on Monday, CNN reported on private remarks made by Senator Richard Burr, a North Carolina Republican up for reelection. He said that there will be no lame-duck confirmation, and then added, “And if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

That aligns him with Senator Ted Cruz, who last week told Dave Weigel, “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

A week before that, Senator John McCain, who is also running for reelection, said, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Later, however, a spokeswoman partially walked back his comments, saying the Arizonan will “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.”

I hadn't really heard of Garland or Gorsuch before. I've read a little on both from the sources I typically do (SCOTUSblog, Dahlia Lithwick, Jan Crawford Greenburg, etc.). Both seem like reasonable picks, they're clearly competent (which wasn't at all clear for Harriet Miers). If you look at ideology, and if "being in the mainstream" counts to you, Garland is more to the center than Gorsuch. Obama's pick would have been the most conservative of the liberal justices, between Breyer and Kennedy. Sen Orin Hatch in 2010 had called him a consensus pick. Gorsuch seems to be very much in the mold of Scalia, placing him as the second most conservative Justice next to Thomas. Of course there's no rule or even norm suggesting that a new Justice has to fill the same ideological role as the one they're replacing, as Alito replacing O'Connor shows. But there is a trend for Democrats to pick moderate-liberals and Republicans to pick conservatives ones.

So the real problem here is that Garland never got a hearing. The Republicans stole a seat and while that suggests some ownership that doesn't feel right, the sentiment is accurate. Democrats could try to take the high road and say Gorsuch is a qualified pick (and better than many others that Trump floated) but what does that get them? Republicans aren't playing fair and Democrats have no incentive to so either. This is one of the norms that has been eroded (I'd argue by Republicans), and we have to figure out a way to fix it, or our democracy is doomed.