Nan Aron

For four days this month, court-watchers were glued to C-SPAN or the web for the confirmation hearings of Supreme Court nominee Neil Gorsuch. It was a very public, high-stakes interview for a rare kind of job: a lifetime position on the nation’s highest court.

And it wasn’t a good performance.

Gorsuch was by turns condescending, canned and alarmingly evasive. The Trump White House clearly had coached him to paint himself as a neutral and fair-minded arbiter, as a way to allay concerns about a troubling record. But one by one, Democrats spotlighted key cases where everyday Americans got the shaft in Gorsuch’s rulings.

There was the freezing truck driver, stranded without heat in subzero temperatures with an inoperative trailer, and fired when he left it behind. There was the university professor, a cancer survivor, who lost her job when she sought additional leave because her doctor told her she could die if she returned to campus amid a flu epidemic. And there was Luke P., the pupil with autism, whom Gorsuch denied placement in a residential school program even though Luke was only meeting 25% of his educational goals.

Each time, Gorsuch told the Senate Judiciary Committee he merely applied the law. But he was undercut on the third day of the hearing when the Supreme Court unanimously ruled that a state owes students with disabilities more than just a minimal education — a direct rebuke to Gorsuch's ruling in the Luke P. case. The nominee claimed when questioned that his decision was dictated by precedent. But he had added a word to the precedent that changed its meaning.

That’s not relying on legal precedent; that’s inventing a new standard, and Gorsuch should know it.

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Unfortunately, Gorsuch's dodges extended to many other crucial constitutional questions, involving women’s reproductive rights, national security, rights for LGBTQ people, and the role of money in politics. The evasiveness stoked concerns that he would be a reliable vote on the court in favor of corporations and other powerful institutions over those seeking to vindicate their rights.

So what should senators do? Given the serious doubts left by Gorsuch’s many non-answers, the permanence of the job and the vast power it commands, it makes sense that this nomination should require the broad bipartisan support of elected lawmakers.

Yet there are rumblings that the rules should be bent or broken for this nominee. Rumors of a “deal” on the Democratic side — or a Republican “nuclear” strike to demolish the 60-vote threshold for Supreme Court confirmation — are rife. Either of these paths would be devastating, and senators should not be tempted by them.

In recent history, George W. Bush’s last two nominees and the two Barack Obama nominees who received a Senate vote all attracted bipartisan Senate support, with more than 60 votes.

If a nominee raises so many concerns that he can’t attract the 60 votes needed, then President Trump should find a new, consensus choice.

This is not to make light of the argument that presidential elections matter, as some have claimed. Of course they do. Nor are Democrats staking out a “no” vote doing so to show knee-jerk opposition to any Trump nominee, or “payback” for the disgraceful treatment of Merrick Garland, as critics have also claimed. They’re concerned about someone whose record, under the harsh light of senatorial scrutiny in recent days, shows he poses a clear danger to hard-won rights and freedoms.

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Neither should senators worry that opposing a “nuclear” option is inconsistent with Democrats’ rule change in 2013. It took those Democrats five years of Republican determination to nullify the Obama presidency, before they finally came up with a rule change to end the gridlock. The impact on the federal judiciary had become severe: the number of vacancies had gone from 53 at the start of the Obama presidency to 94 by November 2013. Judges who were confirmed unanimously or overwhelmingly had waited over 200 days — twice as long as typical in past administrations. Moreover, the GOP minority was blocking all of President Obama’s nominees for the influential appeals court in Washington and for critical agencies like the National Labor Relations Board.

Now, after just eight weeks, Republicans are threatening to blow up Senate rules for the sake of one nominee. It’s not reasonable, it’s not comparable, and critics should stop saying it is.

The truth is that when you clear away the smoke and noise of politics, there is a reason that Neil Gorsuch’s support is falling short of a broad, bipartisan standard. People are deeply uneasy about his record and fear that he could never truly be free of the influence of Donald Trump. All that was made manifestly clear in his confirmation hearings.

We applaud Senate Democratic Leader Charles Schumer, who has taken the most sensible position we’ve heard when it comes to a lifetime appointment on the Supreme Court. If a nominee can’t get the votes, then you don’t change the rules — you change the nominee. Abandoning that standard for this nominee would be a catastrophic mistake.

Nan Aron is founder and president of Alliance for Justice. Follow her on Twitter: @NanAron

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