So, this is 2017: A few days after issuing an incompetently executed, morally dubious, and in many ways misguided executive order on immigrants and refugees, the president nominated an outstanding and unassailable jurist to succeed Justice Antonin Scalia.
It only took a few minutes of channel-surfing to know that whatever opposition is lobbed in Judge Neil Gorsuch's direction will consist primarily of frustrated and inaccurate distortions and simplifications. Gorsuch is easily among the most qualified and well-credentialled judicial nominees in history, and his temperament and collegiality will not be questioned by any informed person.
The point should be made often and simply: Opposition to Judge Gorsuch can only be political and ideological; it cannot be based on the merits. Of course, the Democrats in the Senate have every right, under the Senate's rules, to oppose him—for any reason. But there is no plausible basis for opposition other than simple disagreement with his judicial approach or resentment about the fact that the Republicans refused to confirm Judge Merrick Garland (who is, of course, also eminently qualified to serve on the Court).
It is unfortunate, in a way, that the nomination of such a fine judge comes in the context of a silly prime-time announcement ceremony, in the midst of other controversies, introduced by such a clunky, self-referential speech by the president. Judge Gorsuch is a gifted, eloquent writer and a thoughtful, careful judge. He will not regard himself as beholden to the president who nominated him but will instead, I am confident, do his best to decide in accord with the law and his own formation, education, and values.
Judge Gorsuch would have been on the “short list” of a President Romney's or President Rubio's nominees to the Court. He is widely known and respected among those whose approach to the job-of-judges is called “conservative.” In this respect, he is a conventional selection. At the same time, his combination of learning, experience, and temperament is striking and impressive, and, again, any objective observer—so long as the television cameras are off—would admit as much.
It has been said that this nomination is a “status quo” nomination that does not “change the balance” on the Court. This is true, to an extent. It should be emphasized that the vast majority of the Court's cases are unanimous, or nearly so, and that most rulings do not involve hot-button or “culture war” matters. Whatever one's partisan or ideological predilections, one can rest easy knowing that the technical law-work that takes up most of the justices' time will be in very good hands with a Justice Gorsuch.
At the same time, there's no denying that, for better or worse, the Court has assumed a role in our political life of purporting to resolve high-conflict moral questions. With respect to such questions, I expect that a Justice Gorsuch would agree—perhaps a bit less pungently, in some cases, but no less eloquently—with the late Justice Scalia. This would not be out of loyalty or partisanship but rather because, like Justice Scalia, a Justice Gorsuch understands that to support, uphold, and enforce the Constitution should be an act of humility, not pride.
Richard W. Garnett is professor of law and concurrent professor of political science at the University of Notre Dame.
