OPINION: Democrats Must Take High Road on Gorsuch

President Donald Trump announced Gorsuch's nomination to the US Supreme Court on Jan. 31. Photo courtesy of the White House

While President Trump stumbles over a 37 percent approval rating and the public revelation that he has been under FBI investigation for his alleged Russia ties since July, Supreme Court nominee Neil Gorsuch looms as the GOP’s boy scout, with immaculate credentials and endorsements shielding him from any real voting disruption.

Even if minority leadership opts for a filibuster, Republicans would need just eight Democrats to break rank for 60 votes. Leading GOP Senator John Thune reiterated Wednesday morning that Republicans are willing to “go nuclear” to combat the filibuster, allowing for a simple majority to confirm Gorsuch.

It would be a significant political blunder to oppose Gorsuch, but Michelle Obama’s “When they go low, we go high” campaign lesson weighs uncomfortably on Democrats reeling from the Republican leadership’s months-long blockade of President Obama’s nominee Merrick Garland. Senator Dick Durbin noted Monday that this week’s hearings were “a courtesy which Senate Republicans denied to Judge Garland.” Minority Leader Chuck Schumer ran other interference, believing a vote on Gorsuch should wait until the FBI completes its investigation on Trump.

Fueled by the GOP’s wish to fill Antonin Scalia’s seat with a worthy hardline constitutional originalist, Massachusetts senator Elizabeth Warren played into progressive concerns, suggesting his rulings have supported corporate interests, and spoke to more accessible fears like LGBTQ and abortion rights.

But there is no evidence that Gorsuch would attempt to overturn settled cases, or that he’s even as socially conservative as his predecessor. When asked by Lindsay Graham Tuesday if Mr. Trump had ever spoken with him about overturning Roe v. Wade, Gorsuch himself responded: “Senator, I would have walked out the door. That’s not what judges do.” Christian Mammen, a San Francisco attorney and Gorsuch’s Oxford classmate, suggested to me that he may practice law more like Justice Kennedy, who offered the majority opinion on Obergefell v. Hayes.

Outside of political circumstances, Gorsuch himself is near-impossible to criticize. The Republicans has vaunted his integrity and consistency as a judge, and Gorsuch has said all the right things. At Tuesday’s hearing by doubling down on earlier comments that he found attacks on Federal judges to be “disheartening and demoralizing”.

Openly gay friend and Manhattan attorney Peter Berg endorsed his fair-mindlessness when I asked for comment: “knowing a person’s character is just as useful, if not more so, than reading existing opinions in an area of law and extrapolating the logic into other areas of law.”

Berg’s expert opinion should be comforting for a fearful progressive base and a deterrent for Democratic leadership considering action. Against impossible odds and a deceptively flawless candidate, Gorsuch’s nomination, and a Republican-leaning Judiciary, are inevitable.

By filibustering or engaging in any significant delaying tactics, Democrats practice the obstructionism they’ve openly slammed the GOP for. The former First Lady’s “take the high road” strategy is easy to reject in the wake of Garland, but vain attempts to stall Gorsuch would surely be met with a Trumpian twitter spree and an increasingly potent right-wing media hammering down on Democrats’ hypocrisy.

On Monday, Sen. Michael Bennet acknowledged Garland’s mistreatment, but said that Gorsuch represented the “best qualities” of their home state of Colorado. “We need to fulfill our responsibility to this nominee,” he concluded. If Democrats wish to sustain political momentum and keep the spotlight on the fledgling Trump administration, they will adhere to the confirmation process.

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