Just as people who like sausage shouldn’t visit a sausage
factory, so people who stand in awe of the United States Senate shouldn’t get
too close to the confirmation fight over Judge Neil M. Gorsuch, President
Trump’s first Supreme Court nominee, lest they see more senatorial
sausage-making than they bargained for. It threatens to be an ugly affair.
Gorsuch is, by all accounts, highly qualified. But not only is he
conservative — a strict constructionist and textualist in interpreting the
Constitution and the law — he is also the choice of a controversial president.
Plus, it appears, distinctly pro-life, having once written in a book on
assisted suicide and euthanasia that “all human beings are intrinsically
In the end, he is likely to be confirmed for the seat held by the
late Justice Antonin Scalia. But not until Senate Democrats, spurred on by Minority
Leader Charles Schumer, D-N.Y., have given him as hard a time as they can.
In fairness, the Democrats have their reasons. Following Scalia’s
death last year, President Obama named another federal appeals court judge,
Merrick Garland, to succeed him. But Obama had already placed two liberal
justices on the court — Sonia Sotomayor and Elena Kagan — and Senate
Republicans, balking at a third Obama choice in a presidential year, blocked
Garland’s confirmation by simply doing nothing about it.
The Democrats cried foul. And their opposition to the Gorsuch
nomination can be seen, at least in part, as payback for what happened to
Although it’s hard to see how any of this adds up to a
justification for denying a seat on the Supreme Court to a well-qualified
candidate, the confirmation process will be marked by partisan conflict just
Robert Bork, were he living today, could tell Gorsuch how bad it
can get. Back in 1987 Ronald Reagan nominated Bork, a distinguished legal
scholar, for a seat on the court. The events that followed set a precedent for
the contentious Supreme Court confirmation battles that have been a recurring
feature of national life since then.
Hardly had Bork’s nomination been announced than Sen. Edward
Kennedy, D-Mass., took to the Senate floor to oppose it, invoking monsters from
the liberals’ chamber of horrors — “back alley” abortions, segregated lunch
counters, “rogue police” breaking down doors at midnight — to explain why
putting Bork on the court would be a disaster.
In the weeks that followed, Kennedy spearheaded a campaign of
name-blackening that culminated with Bork’s rejection by the Senate, 58-42.
Bork became a Catholic in 2003. His wife, Mary Ellen Bork, today is a popular
Catholic writer and lecturer.
When and if Gorsuch does make it to the Supreme Court, the lineup
there will be basically what it was before Scalia’s death — a 4-4 split between
liberals and conservatives, with Justice Anthony Kennedy the swing vote. It
will take another conservative justice to shift that in the conservatives’
Will Trump get another chance to name a new justice? There is no
way to answer that for sure. The court’s three oldest members are Ruth Bader
Ginsburg, 83, Kennedy, 80, and Stephen Breyer, 78. Ginsburg and Breyer, both
liberals, are unlikely to quit voluntarily as long as Trump is naming their
successors. As for Kennedy (for whom Gorsuch clerked many years ago), there’s
Large issues hang in the balance here, among them the future of
abortion law and the defense of religious liberty. Never mind about the sausage
factory. Concerned Americans need to keep a close eye on the Gorsuch
confirmation fight that lies ahead.
Shaw is a freelance writer from Washington and author of American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.