A few friends have asked me what I thought about the Neil Gorsuch nomination for the Supreme Court. My answer was immediate. He should not be approved. But not because I don't agree with his politics or think he's unqualified or that he's too conservative or any ruminative reason.. It's far more basic. I don't think he should have even been nominated.
To be clear, it's not that I don't think think Neil Gorsuch personally should have been nominated -- I don't think anyone should have been nominated by Trump. Unless it was Merrick Garland -- again.
I think what the Senate Republicans during the last year of the Obama presidency -- not only not voting on Judge Garland, but not even agreeing to meet with him -- was perhaps the most constitutional disaster in my lifetime, if not the history of the United States, something that will change the fabric of the country for at least the next decade, if not many decades longer. And I don't say that as hyperbole. The U.S. Constitution gives the president the duty to nominate a Justice when there's an opening. It doesn't say, "Unless there's more than two years left in his term." It doesn't say unless he's a lame duck. It doesn't say unless he's in a different party than the majority of the Senate. It says the president nominates a Justice to the Supreme Court when there's an opening. That's it. End of story.
Republicans kept saying that it was "for the voters to decide" who the next Supreme Court nominee would be. Well, first of all, no, that's not true. It's for the president to decide who he'll nominate, and for the Senate to vote on it. But even IF Republicans actually believed that (which they don't, not for a second, because I'll bet every nickel I own that if it was a Republican president nominating someone, the Republican Senate would have been voted on and approved that person), even IF Republicans believed what they were trying desperately to convince others even as their souls shriveled...the the voters did decide. When the public voted for Barack Obama to be president, they voted on letting him nominate whoever he wanted to at any moment in his four-year term. That's it. End of story.
(Some Republicans tried to point to the non-binding "Biden Rule," but that was used under completely different circumstances. And it wasn't even actually a rule.)
The Republican coup-like action was all the more disingenuous given that the Justice who's death left the opening, Anthony Scalia, was probably the most-strict "originalist" in the history of the Supreme Court, someone who likely would have lashed out at "reinterpreting" the Constitution to remove the president's right to nominate a Justice at any time there was an opening.
If there literally wasn't time to conduct a fair, full investigation and hearing, I would understand that, the nature of reality and all. But that wasn't ever the GOP argument -- nor could it be. There was over a year left in Barack Obama's presidency. That's a massively long time. Merrick Garland was highly qualified, he'd been approved by the Senate for his federal seat on the bench, Republicans had spoken highly of him previously, and he should have been voted on. And approved.
It wasn't just shameful what Republicans did, it was -- as I said -- the worst constitutional disaster in my lifetime, maybe in the history of the United States.
From my perspective, any Republican nominated by Trump for the Supreme Court should be turned down because I believe it is an illegitimate nomination. Same thing, for the time being, as long as there's a Republican in the White House. If that means no ninth Justice until the next Democrat is elected president -- however long (or short...) that is -- so be it. That's harsh, but not even a blip on the Harshness Scale considering what Republicans did to Merrick Garland's nomination. It's not likely to happen, I know, but it's still what I believe is right and proper.
What makes what the Republican's ghastly action even worse, which is a remarkable concept, is that I don't know how they fix the imbalance that the Republicans created. The negative impact of what they did will take decades to fully play itself out, and even then it has lasting negative consequence
A friend suggested a solution. Let senators agree to split the next two Supreme Court nominations -- the first one would go to Republicans and Trump, and for the next opening the Democrats would get to pick. I said I thought it was a swell idea in concept, but a ridiculous, unworkable fantasy in practicality. Republicans would never give the next pick to Democrats, and Democrats would never trust Republicans to keep their promise (nor should they trust them, given the GOP action last year) at the next opening..
I did offer an alternative, though. The only one I could live with. Mind you, it's not practical and wouldn't ever be agreed to, but it's the only way I can see the deeply-problematic situation being resolved -- other than waiting, which is my actual choice. (And even "waiting" has problems since, for all I know, Republicans would try to block that again.) What I suggested was a tweak to his suggestion -- I said the Senate should wait until there were two openings. At that point, the Republicans and Democrats would each get a nomination. And voted on jointly. Mind you, a) I don't know how Democrats would decide on a nominee, and b) this won't ever happen, but that's the only way out of this utter constitutional disaster that was caused by Republican. At least my friend thought it was a good improvement on his idea...
But in lieu of that, as things stand, I don't believe that Neil Gorsuch should be approved for the Supreme Court. And you may hold on to this article and re-read it if there's a next time when Trump nominates someone. That's it. End of story.
Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
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