LEAVE IT to Senator Lindsey Graham, the folksy Republican from South Carolina, to get to the heart of the matter in Tuesday’s Supreme Court confirmation hearing for Judge Neil Gorsuch. He was comforted, he said, that President Trump had chosen a legitimate jurist. “Quite frankly, I was quite worried about who he’d pick. Maybe somebody on TV.”
Measured against the Judge Wapner standard, Gorsuch, a federal judge on the US Court of Appeals for the 10th Circuit, certainly shines in terms of legal bona fides. And, considered a sort of originalist lite, he seems unlikely to change the balance on the court if he is confirmed to replace the conservative icon, Antonin Scalia, who died last year.
But Democrats in Congress are rightly wary of his views on social issues such as gay marriage and abortion rights. Although he has not ruled on any cases directly involving abortion during 10 years on the Appeals Court, other decisions point to a discomfiting theme: that personal religious conscience trumps everything.
In fact, Gorsuch has sided with the plaintiffs in cases that turned on religious objections to basic reproductive rights guaranteed under the Affordable Care Act. When the Hobby Lobby Stores sued the government over the ACA’s requirement that health insurance must pay for birth control, Gorsuch wrote a concurring opinion. He argued that the Green family, which owns Hobby Lobby, could also bring a claim because the contraceptive mandate forced them “to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.”
Extending that argument, he could join other conservatives on the court in ruling for plaintiffs who claim their religion prohibits them from selling flowers to same-sex couples who want only to say their marriage vows under the chuppah. Make no mistake: That’s how rights are eroded and ultimately expunged — even a landmark decision like Obergefell v. Hodges in 2015, which noted that the US Constitution is profound enough to bestow dignity and freedom for future generations, even as cultural norms change.
But as hard-edged as the nominee’s conservatism may be, Democrats in Congress should refrain from the temptation to filibuster. That, in turn, means that Republicans would probably trigger the so-called nuclear option, which ends the need to muster 60 votes to break a filibuster and allows lawmakers to take an up-or-down vote, with only a majority needed for confirmation. Both parties’ views on the filibuster tend to shift depending on whether they hold the majority, but the 60-vote threshold was never anticipated by the Constitution, which calls for majority votes. (And, yes, the Constitution also didn’t anticipate the Republicans’ boycott of Merrick Garland’s nomination last year.)
Democrats would be fully justified in voting against Gorsuch’s confirmation. But a pointless filibuster, however pleasing to partisans, would only continue the politicization of the courts. Republicans grievously undermined the Supreme Court through their behavior last year, but Democrats should seek payback at the ballot box, not with a filibuster.
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