Six Initial Thoughts on the Gorsuch Nomination

Few wait with baited breath for Aardvark’s initial comments, but what the hell, I’ll share them anyway.

  1. It could have been worse. (See this reaction by Obama’s solicitor general, Neal Katyal.)
  2. Someone who makes a point of not showing undue deference to the executive branch is not a bad guy to have at this point in history.
  3. Accordingly, this time around the better part of wisdom would be for Democrats to participate actively in the hearings, listen to get a sense of his character and views, and then decide whether it’s someone they can support. If fundamental problems arise out of the testimony, vote no. If not, abstain or vote yes.
  4. Progressives need to take a clear stand on the stolen seat issue. 2018 and 2020 are both election years. They should declare in advance that they will refuse to anyone Trump might nominate to fill any Supreme Court vacancy that occurs in those years. Not because they agree with the Republicans’ having deducted one year from Obama’s term of office, but because turnabout is fair play.
  5. If a vacancy does occur in one of those years, the Democrats filibuster, and the Republicans invoke the nuclear option, then so be it. The filibuster is on the way out anyway, and it should be on the way out as long as its going to be abused. Jonathan Chait says let the Republicans kill it, and I tend to agree.
  6. Finally, just for laughs, I hope someone of a scholarly bent will provide a detailed, reasoned catalog of legal issues on which Gorsuch and Garland would probably vote differently. That might make for a reasonably informed discussion. And God forbid that we should have an informed discussion on a matter such as this.