Weeks in advance of Judge Neil Gorsuch’s testimony before the Senate Judiciary Committee, a number of Democratic senators had already declared that they would vote against confirming the Supreme Court nominee. Senator Jeff Merkley of Oregon, who was one of the first to make a public statement, justified his opposition on the grounds that the nomination is for “a stolen seat being filled by an illegitimate and extreme nominee.”
America’s editors have opposed the unprecedented obstructionism of Senate Republicans who refused even to hold a hearing for Judge Merrick Garland after his nomination by President Obama, arguing that if they believed “that approving this nominee would result in unacceptable outcomes, resolving fundamental questions of social policy in the wrong direction,” then they should have had the courage to say so explicitly and vote his nomination down. While it could be argued that the Democratic senators opposing Judge Gorsuch are showing such courage now, they have—dangerously—pitched their refusal to confirm both as a tit-for-tat response to the last nomination and also in terms of the nominee’s supposed extremism. Both approaches will further entrench the stalemate in which the Supreme Court, by resolving constitutionalized questions of social policy, must constantly be the front line of the culture wars.
The Republican response to the Garland nomination was understandable on political grounds and indefensible on constitutional grounds. Democratic opposition to the Gorsuch nomination as payback is in exactly the same situation. But the attempt to portray Judge Gorsuch as “extreme” goes further. It is, in part, code language that expresses the expectation that he will not support the decisions in Roe v. Wade or Casey v. Planned Parenthood or other cases that have made the Supreme Court the only feasible venue for adjudicating the abortion question. Senator Ed Markey of Massachusetts identified Judge Gorsuch’s “opinions that have demonstrated hostility to women’s reproductive rights” as a principal reason for his opposition. These opinions, however, are not on the fringe. Around 40 percent of Americans believe abortion should be illegal in all or most cases; and 8 in 10 favor restrictions on abortion, many of which are largely impossible to implement under Roe’s line of constitutional interpretation.
Preserving an absolute right to abortion does not justify pre-emptive opposition to a Supreme Court nominee. Even if Judge Gorsuch were to cast a deciding vote against the precedent of Roe v. Wade, that would simply return the question of abortion regulation to democratic resolution by Congress and state legislatures, where a debate could unfold and be resolved.
It is possible that an open debate over Judge Gorsuch’s nomination—in Senate hearings, without pre-declared opposition—would allow for reflection on how the Supreme Court ought to function and what moral and policy questions must be decided on constitutional grounds. Refusal to confirm a Supreme Court nominee because of expected policy outcomes is understandable, even if unwise. American democracy, however, will be healthier if the Senate acknowledges that nomination hearings are not an adequate arena for a serious policy debate. Like Judge Garland, Judge Gorsuch’s qualifications are excellent. He cannot be opposed on those grounds.