The choice of Neil Gorsuch to fill the long vacant seat on the United States Supreme Court could have been much worse, it seems to me.
To say so does not represent an endorsement of the man – far from it – but it is hardly shocking that a conservative president should take the opportunity to pick a conservative judge. The Supreme Court has always been populated by conservatives picked by Republican presidents and liberals picked by Democratic ones.
Gorsuch, apparently, is a deeply conservative jurist, but he can hardly be more to the right than the man he replaces, Antonin Scalia, who died a year ago. Scalia was deep-dyed conservative and during his entire tenure on the bench was the scourge of the political left – only slightly less reviled in liberal circles than Clarence Thomas, George H.W. Bush’s nominee, who achieved notoriety when he was accused by Anita Hill during his nomination hearings of sexual harassment.
Gorsuch will therefore not change the philosophical complexion of the Court.
Nominating a candidate for the Supreme Court always involves an element of political tactics, and I dare say Gorsuch is no exception to the rule. The game is played as follows: the Trump administration is almost certain to be required to nominate one more justice, and may even have the chance to select two or more, so picking a respectably mainstream conservative (Gorsuch clerked for two Supreme Court Justices, including Anthony B. Kennedy, who apparently admires him) ‘softens up’ the Congress for a more extreme conservative the next time a vacancy comes up.
That vacancy may be created by the retirement of Kennedy himself, who is now eighty, within the next few years. Kennedy, though nominated by a right-wing Republican president (Reagan), has been a centrist on a deeply divided court, so if Trump gets to choose his replacement he can then tilt the Court to a conservative majority.
In case you’re wondering why I seem to be paying the new administration a rare compliment, let me offset the views expressed above by pointing out that Scalia’s seat should have been filled in the last few months of the previous administration. President Obama nominated to the bench one Judge Merrick B. Garland, a liberal, but was thwarted by the Republican-controlled Senate on the specious grounds that it was ‘inappropriate’ to put someone on the bench during an election year. If the Democrats try to delay Gorsuch’s approval, they will only be doing what their opponents did last year.
Such is the way of Supreme Court politics, not just now but also in days gone by. Ancients, especially those of the Republican persuasion, will remember Franklin D. Roosevelt’s attempt to ‘pack’ the court as far back as the Thirties. (He failed.)
There is one unknowable element in all this. Supreme Court justices selected for their ‘safe’ partisan opinions, once ensconced on the bench for life, sometimes turn out to be, legally speaking, wolves in sheep’s clothing.