There is a surprisingly strong consensus that Neil Gorsuch is a smart, thoughtful and gifted Supreme Court nominee, but that’s not what the debate is going to be about.
It’s going to be driven by Merrick Garland and Democratic payback. And there is ample hypocrisy on both sides.
Gorsuch, an appeals court judge unanimously confirmed by the Senate, has a well-earned legal reputation, even according to many liberal analysts.
“A highly credentialed favorite of the conservative legal establishment,” says the Washington Post.
“Judge Gorsuch has deep roots in the city and the establishment Mr. Trump often criticized,” the New York Times says of the Harvard Law School graduate.
Slate legal analyst Dahlia Lithwick told MSNBC that Gorsuch is “an incredibly solid, respectable, conventional pick that anyone would have made. In one sense, it`s surprising for Trump because Trump promised us a blue-collar, non-Ivy non-fancy pants guy.”
What’s more, it was encouraging to hear Gorsuch say when President Trump introduced him that “a judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.” That reminded me of John Roberts, when he was tapped for chief justice, saying the judge’s role is to call balls and strikes—much to the right’s consternation when he helped uphold both ObamaCare and same-sex marriage.
You will hear some Democrats say that Gorsuch is out of the mainstream. There is virtually no evidence of that. His rulings on such issues as religious liberty are anathema to the left, but he has avoided inflammatory language and comments.
But there was also no evidence that, as a Democratic nominee, Garland was out of the mainstream. Most Senate Republicans refused to meet with him, much less give him a hearing, and they had declared in advance a refusal to consider anyone that President Obama would nominate.
That’s why the Huffington Post ran with a “Heist of the Century” headline—because Democrats feel this seat was stolen from them, and they want revenge.
So now the Republicans are going to complain loudly about Democratic obstructionists, just as the Dems complained about them last year. No one has clean hands here. It’s all about gaining tactical advantages.
There has been some chatter about Chuck Schumer’s party mounting a filibuster, but that would probably cause Mitch McConnell to use the nuclear option—endorsed by Trump yesterday—by eliminating filibusters for Supreme Court nominees. The Democrats already did that for lower-court nominations when they were in charge.
That would mean the Dems wouldn’t have that weapon available for Trump’s next SCOTUS pick—one that would change the court’s balance of power, rather than installing a solid conservative in Antonin Scalia’s seat.
Several outlets reported that by picking a judge who once clerked for Anthony Kennedy, Trump may have been sending a signal to the 80-year-old justice that it is safe to retire. Some who know Kennedy say that wouldn’t matter to him.
One thing is clear: Donald Trump, with this pick, helped himself with a GOP establishment that might be wary of him on other issues. On the high court, at least, even the most conservative Republicans got what they wanted.
Footnote: Media reports that Trump was staging an “Apprentice” ending by bringing the other finalist, Judge Thomas Hardiman, to Washington were flat wrong. Hardiman never left Pennsylvania.
Footnote 2: Gorsuch was a high school student in the early 1980s when I reported on his mother, Anne Gorsuch, who was forced to resign as EPA administrator after being cited for contempt of Congress against the backdrop of a major agency scandal. That has nothing to do with the nomination, but I wonder how it affected the young man’s view of Washington.
Howard Kurtz is a Fox News analyst and the host of "MediaBuzz" (Sundays 11 a.m.). He is the author of five books and is based in Washington. Follow him at @HowardKurtz. Click here for more information on Howard Kurtz.