I’m someone who believes elections have consequences. And I’m also someone who doesn’t believe in futile gestures.
So, ordinarily, I’d be saying go ahead and vote for Gorsuch. As I see it, the Constitution gives the president the right to appoint justices, and as long as they’re of good character and temperament, and within the “greater mainstream” of American legal thought — basically, within a couple standard deviations or more of the norm in a bell curve of judicial philosophy — they ought to be confirmed. Only if they’re so far to the right or left that they reside in the skinny tails of the curve should they be rejected.
This applies to right and left alike. So, for example, I argued on this site many years ago that the Senate ought to confirm Roberts and Alito, and the Republicans had no good reason to reject Kagan or Sotomayor. The former were conservative and the latter liberal, but none of them could reasonably be said to exist on the kooky fringe.
I think the same is true of Gorsuch. Yes, he’s conservative and pro-business. What kind of judge did you expect Trump to nominate? He’s not my cup of tea, but his views are within the mainstream of right-leaning judicial thought. He’s even probably a tad to the left of Scalia, Thomas and Alito — though granted, that’s not saying much.
I also haven’t got much patience for futile gestures — another reason I opposed rejecting Roberts or Alito. They weren’t going to be rejected, but even if they had, Bush would have just nominated another conservative, and another, and another…
So, ordinarily, I’d oppose opposition to Gorsuch. It’s futile, because he’s going to be confirmed in any case. Even if the Dems succeed in a filibuster, the Republicans will just employ the “nuclear option,” change the rules, and confirm him anyway.
Yet I find myself in the novel position of believing that the Dems ought to fight this nomination tooth and nail, employ every parliamentary tactic, including a filibuster and whatever other obstacles they can put in the way, to delay his confirmation and generally make the Republicans miserable.
In the end, Gorsuch will get confirmed. But my usual enmity towards futile gestures is overcome by the need to send a strong message of just how angry the Democrats are about the treatment of Merrick Garland. By refusing to give their advice and consent to the nominee of the legitimate, sitting president, the Republicans set a new standard of deviancy and unconstitutional practice. I’d rather the Dems didn’t base their filibuster on Gorsuch’s beliefs, for the reasons I outlined above, but instead to register their disgust at the Republicans’ actions. But, whatever.
In any event, this time, a futile gesture is called for!