More than just a Supreme Court seat is at stake in the Senate’s handling of Judge Neil M. Gorsuch’s nomination. After howling for years about the supposed overreach of the Obama administration, Senate Republicans have yet to show they care about asserting checks and balances in the new Trump administration, even after a series of White House stumbles. The Supreme Court nomination is a chance for senators to stand up for themselves — or not.
Judge Gorsuch, whose selection was announced in a live broadcast on Tuesday night, is entitled to hearings and a vote. What he’s not entitled to is the same level of senatorial deference that Cabinet nominees receive. The Senate has ample precedent for derailing Supreme Court nominations — including the withdrawal of George W. Bush nominee Harriet Miers — when senators conclude a nominee is incompetent, outside the judicial mainstream, or lacks the ethical compass for the job.
Trump’s nominee may or may not fail any of those tests — that’s what the hearings process determines. Or at least, should determine.
But so far, congressional Republicans have been remarkably supine in the face of Trump’s actions. The Trump administration’s bigoted ban on travelers from seven Muslim countries, which was enacted without consultation with Congress and rolled out in incompetent fashion, should at the very least have led to hearings. Instead, Republican senators issued a few scolding tweets. Even John McCain and Lindsey Graham, who have been the two most vocal GOP opponents of the ban, have refrained from actually doing anything about it.
The reluctance seems to stem from a tactical concern — that Trump will perceive rigorous oversight as an affront, poisoning chances for passing tax reform and other Republican priorities. One GOP senator, John Cornyn, said as much, in a remarkably frank explanation for the Senate’s reticence. “I’m going to keep my powder dry so we can accomplish our overall agenda,” he said. Translation: Because it would hurt Trump’s feelings, Congress won’t do its job. By going so easy on Trump — easier than the GOP did on the last Republican president, George W. Bush — they’re rewarding his bullying and encouraging more.
But a Supreme Court nomination is too important for that sort of spineless calculation. The Senate needs to subject the nominee to full scrutiny. And if the nominee does not pass muster, senators need to demonstrate a willingness to say the magic word that so far has been missing from the GOP’s vocabulary: no.