Another day, another administration and Senate, another partisan fight that catches a highly qualified Supreme Court candidate in the crosshairs.
And while Democrats complain with some justification that Republicans should have taken up the nomination of well-qualified Merrick Garland late in President Obama’s term, the Democrat and liberal reaction to President Trump’s nomination of Judge Neil Gorsuch of the 10th Circuit Court of Appeals, claiming that he’s “dangerous,” “extreme” and “outside the mainstream,” borders on farce.
While his record favors allowing elected representatives rather than bureaucrats to “make” the law, no one can seriously suggest he would vote for radical rewriting of the law in cases such as Roe vs. Wade. And there is no question Gorsuch is qualified. Undergraduate degree from Columbia; law degree from Harvard, both with honors; and a doctor of philosophy from Oxford. He was unanimously confirmed by the Senate to the 10th Circuit, which includes New Mexico, in 2006.
He has clerked for Justice Byron White and then Justice Anthony Kennedy. He was rated well-qualified by the American Bar Association judicial-selection panel, its highest rating; is a member of the federal Advisory Committee on Appellate Rules and has a reputation as someone committed to the rule of law.
He would fill the vacancy created by the death of Antonin Scalia, one of the court’s most conservative justices.
Albuquerque attorney Andy Schultz, who also clerked for White, says Gorsuch has a reputation for being “remarkably prepared and really pushing attorneys to the edges of their arguments, not because he’s a bully in any sense but because he really wants to know how far the law can go. In that sense, he will fit in very well with this current Supreme Court.”
Former New Mexico Supreme Court Justice Paul Kennedy has argued cases before Gorsuch at the 10th Circuit. “He is an enormous intellect – a really, really bright guy. In terms of his demeanor, he was great.”
There is no chance Senate Democrats can block Gorsuch short of a filibuster, with Senate Republicans failing to get 60 votes for cloture to stop it – unless Senate Republicans follow suit and change the rule by using the so-called nuclear option. That would allow a vote to go forward on a simple majority. Former Senate Majority Leader Harry Reid, D-Nev., did that in 2013 that when Democrats were in power to cover all appointments except Supreme Court.
Historically, both parties share the blame for denigrating the appointment of a Supreme Court justice to just one more partisan battle.
Thirty years ago, Democrats shot down President Ronald Reagan’s Supreme Court nominee, Judge Robert Bork, with such vengeance that his surname became a verb – Borked – meaning the obstruction of a political nominee by persistent vilification. Surely Democrats understand after the last election that the new president is a master of the craft.
In refusing to take up Garland, Senate Republicans justifiably cited “the Biden rule,” referring to the former vice president’s tactic of not acting on a potential nominee when he was a U.S. senator.
It is not in the best interests of the Senate to exercise the nuclear option. Democrats should participate fully in hearings and then allow a vote to go forward based on that record. Meanwhile, some New Mexicans will remember Gorsuch in a case that made headlines here.
In May 2011, a student at Cleveland Middle School interrupted physical education class by fake burping repeatedly. The teacher sent the boy into the hall, where he continued to poke his head back into the classroom and burp some more. The teacher called the “school resource officer, ” an APD officer assigned to the school, who arrested the boy, handcuffed him and took him to a juvenile detention facility for violating New Mexico’s school disruption law. The boy’s mother sued the principal, an assistant principal and the police officer, claiming the arrest violated her son’s constitutional rights.
A federal district court ruled in favor of the school officials and police officer, and the mother appealed, focusing only on the police officer. Though the 10th Circuit ruled 2-1 in favor of the officer, Gorsuch’s respectful, well-reasoned dissent, which included a quote by Charles Dickens, pointed to case law that held that trivial interference with the educational process doesn’t amount to a crime, and that there must be a “more substantial, more physical” disruption of school operations to justify arrest.
While neither N.M. Sens. Tom Udall nor Martin Heinrich, both Democrats, have said whether they plan to vote for or against Gorsuch’s nomination, the country could use more of the Gorsuch approach and less of the hyperpartisanship that is crippling this nation.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.