Professor Fred Smith, in a Feb. 5 Atlanta Journal-Constitution opinion piece, says Democrats should give Judge Neil Gorsuch a respectful and fair hearing. They should, and then they should vote against his confirmation.
The process by which judges are nominated and appointed to the U.S. Supreme Court is a political one, and designed to be so. The president makes his political choice and the Senate, through its advice and consent role, either gives or withholds its approval. No Democratic senator (or like-minded independent or Republican, for that matter) should vote for a judge, like Judge Gorsuch, who believes that the Constitution is best understood as the framing generation understood it. That is a regressive view of our Constitution, which the Democratic Party must be seen to reject.
The question for the Senate is not whether a nominee is “qualified;” of course, Judge Gorsuch, given his education and experience, is “qualified” (as, equally obviously, was President Obama’s nominee, Judge Merrick Garland). The question is whether the nominee has an acceptable constitutional vision.
Democratic senators should vote in favor only of a nominee who shares their progressive constitutional vision, who understands that the judicial task is to figure out what the words of the Constitution mean, not what they meant at some time in the past.
Take equal protection, for example. The Equal Protection Clause of the 14th Amendment provides, “no state shall deny to any person within its jurisdiction the equal protection of the laws.” Had you asked the framers of this provision whether it protects women against state discrimination, the answer would, almost universally, have been “no, of course not.” (Justice Scalia, incidentally, took the same position.)
While the framers of the Equal Protection Clause enshrined the concept of equality into our Constitution, we are not stuck with their narrow conception of it (to use a distinction made by Ronald Dworkin). There is no reason why we should govern ourselves by the lights of those less enlightened, and no judge who believes otherwise should be confirmed to a seat on the highest court in the land.
Democratic senators should vote against the confirmation of Judge Gorsuch, not out of revenge for the refusal of Senate Republicans last year even to consider President Obama’s nominee, even though that was a bad faith failure to exercise their advice and consent role properly, and probably should have consequences.
Rather, Democratic senators should vote to reject Judge Gorsuch in the good-faith belief that the last person the high court needs at the moment is another Justice Scalia. That is what the advice-and-consent role is for, to exercise, in good faith, the judgment that one nominee or another is suited to the court. Judge Gorsuch is not that judge.
The confirmation process presents the only opportunity that the American people, through their senators, have to vet the views of federal judges. Democrats must make clear that theirs is a living Constitution, not a Constitution, (in the words of the late Justice Scalia) which is “dead, dead, dead!”