Article II, Section 2 of the United States Constitution says that the President shall appoint “Judges of the Supreme Court” with the “advice and consent” of the Senate. In September 1789, President Washington appointed John Jay of New York as our Chief Justice, and men named Rutledge, Cushing, Wilson, and Blair as Associate Justices. The Senate gave its approval by acclamation, as it did with most of their successors until the twentieth century.
The first close Senate confirmation vote had a New Hampshire connection. Nathan Clifford, born in Rumney (Grafton County) squeezed by the Senate 26 to 23 and went on the Court in 1858. Two of the other three New Hampshire justices, Levi Woodbury from Francestown and Salmon P. Chase, born in Cornish, were approved by a unanimous Senate.
David Souter, our fourth Supreme Court member, moved to New Hampshire when he was 11. President Bush (#41) appointed him to the Court in 1990, and the Senate gave him thumbs up by a 90 to 9 vote.
Times have changed. On March 16, 2016, President Obama nominated Judge Merrick Garland to succeed Justice Antonin Scalia, whose death the previous month created a vacancy. The Senate’s Republican leadership refused to consider him, leaving it to the “people,” meaning the next President, to choose a replacement for Justice Scalia. Yes, they “stole” this seat by refusing to consider a well-qualified nominee. Whether or not that political maneuver was constitutional, it was wrong.
President Trump announced Tuesday that he is nominating a federal appeals court judge named Neil Gorsuch to become the Court’s 113th Justice. What happens next and how this will play out is anyone’s guess.
On the one hand, in 2006 Judge Gorsuch was confirmed by a unanimous Senate vote as a federal judge on the Tenth Circuit Court of Appeals. On the other hand, we’re now talking about the Supreme Court, and that is an entirely different matter.
We are about to witness a classic fistfight, Democrats against Republicans, and the battle lines could not be clearer. Democrats are saying that Judge Gorsuch is not sufficiently “mainstream,” meaning that he is an “originalist” with a “Scalia-like” record. (Scalia, by the way, was appointed by President Reagan and confirmed in 1986 by a vote of 98-0.) So long as the filibuster rule stays in place, the nomination may never get to the full Senate, unless at least eight democratic senators cross over. Remember, however, that the Republican majority has the ultimate trump card, the so-called “nuclear option.” By a simple majority vote they can eliminate the filibuster. If the nomination gets bogged down, the President, who likes getting his own way, will likely call upon them to do so.
Over the last 50 years, several federal judges have fallen short, most notably President Reagan’s nomination of Judge Robert Bork in 1987. That was not a filibuster but rather a decisive 58-42 Senate vote that added a word to our vocabulary. The Merriam-Webster dictionary defines the verb “to bork” as “to attack or defeat a nominee for public office.”
The idea behind “borking” is to keep extremists off the Supreme Court. One person’s extremist may be another person’s moderate, but if “to bork” becomes to oppose a nominee just because you don’t agree with some of his or her opinions, then the constitutional process of appointing Justices becomes completely political. I think that would be wrong.
Here’s how I come out. Give Judge Gorsuch the courtesies denied to Judge Garland. He has degrees from Columbia, Harvard Law, and Oxford, has a distinguished career as a lawyer and judge, and likes to ski and fish.
Hear what he has to say when he testifies before the Senate Judiciary Committee. Then let the Senate decide whether to confirm based on whether he is qualified to sit on our highest court. In other words, rise to the occasion and do the right thing.