For more than 200 years, defeating a Supreme Court nominee by partisan filibuster was not considered an option.
Not even for Clarence Thomas, the most controversial Supreme Court nominee of my lifetime, who was confirmed by a bare 52-48 majority. Any senator could have filibustered, but none did. Even 51 days before Civil War, when the nation was literally divided, no senator thought to filibuster Jeremiah Black’s nomination to the Supreme Court.
Yet Thursday, a minority launched the first-ever partisan filibuster to defeat Judge Neil Gorsuch’s nomination to the Supreme Court. What could motivate 44 Senate Democrats to oppose Gorsuch so strongly that they were willing to violate more than 200 years of Senate tradition and attempt to deny him an up or down vote?
Certainly not a lack of intellect or experience. Gorsuch earned his college degree from Columbia, law degree from Harvard, and graduate degree from Oxford, and he has served more than 10 years as a federal court of appeals judge.
Gorsuch has received only glowing praise for his character, temperament, and fair treatment of every person who comes before the court.
And Gorsuch has wide bipartisan support, having been endorsed by numerous Democrats; by the U.S. Senate of 2006, which confirmed him to the U.S. Court of Appeals without any dissent; and by a bipartisan majority of the current Senate, who wish to confirm Gorsuch to the Supreme Court.
Senate Minority Leader Chuck Schumer (D., N.Y.) has assailed Gorsuch as "out the mainstream." But, in the more than 2,700 cases Gorsuch has participated in, he was in the majority 99 percent of the time. This on a court where most of Gorsuch’s colleagues seven out of 11 – were appointed by Democratic presidents. Does the Democrat leader believe that these seven Obama and Clinton appointees are "out of the mainstream"?
I doubt it.
One of the minority’s real concerns is that Gorsuch will apply the law as written and equally to all. The debate is about more than a single seat on the Supreme Court. It is a debate over the proper role of judges under our Constitution.
Under my view, and I believe Gorsuch’s view, laws mean what they say. Changes to the law are made by We the People. Judges treat everyone equally, regardless of race, sex, wealth, political affiliation, or political connections.
Under the view held by many of Gorsuch’s critics, laws, including the Constitution, mean whatever a judge feels they should mean. Changes to the law and Constitution can be made by unelected, unaccountable judges, who substitute their policy preferences for those of the American people. Judges should be acutely aware of the race, sex, wealth, political affiliation, and political connections of those who come before them, and decide cases based on these factors.
Gorsuch’s critics cherry-pick from the more than 2,700 cases he has decided and point to a handful where he did not rule for people they find politically sympathetic.
These critics do not mention that often, Gorsuch was joined by Democrat appointees or his decision was compelled by precedent. These critics do not mention that in many cases, Gorsuch ruled for the same groups they list – workers, unions, women alleging sexual harassment, environmentalists, religious minorities, immigrants. And, most notably, these critics do not mention the law. They don’t allege that Gorsuch ignored, violated, or misunderstood the law.
Instead, they complain that Gorsuch ruled for their politically favored constituencies only some of the time, not all of the time. In short, it is unacceptable to some of my colleagues that Neil Gorsuch is firmly committed to the rule of law and equal treatment for all.
It is also apparently unacceptable to some that President Trump should ever be able to select a Supreme Court justice.
The Senate minority leader has made it clear that he intends to keep the Supreme Court seat open indefinitely. He says he wants to "sit down" and "talk about a new nominee that can gain sufficient bipartisan support" to reach 60 votes. But that same Minority Leader also said, "It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support." When a reporter followed up by asking "So you will do your best to hold the seat open?" Schumer responded: "Absolutely."
The Democratic leader has set an impossible standard: Any one whom Republicans support, Democrats will oppose; but a nominee must obtain both Republican and Democrat support to receive a confirmation vote.
The U.S. Senate was left with an unfortunate choice. Either we allowed a partisan minority to continue to violate more than 200 years of Senate tradition and block a vote on this very good man to the Supreme Court, or we acted to restore Senate tradition and allow a bipartisan majority to take an up-or-down vote on Gorsuch.
I believe the choice was clear. The minority refused to reconsider its obstruction, so I acted to restore Senate tradition, uphold the rule of law, and allow a bipartisan majority to confirm Judge Neil Gorsuch to the U.S. Supreme Court.
Pat Toomey is a Republican U.S. senator from Pennsylvania. @SenToomey
U.S Senator Pat Toomey
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