Back in the summer of 2005, I urged Democrats not to oppose President Bush’s nomination of John Roberts to the Supreme Court of the United States. Despite my strong disdain for his politics, I argued that Roberts was a first-rate legal mind. Just as important, the future Chief Justice passed my three-part test for any Supreme Court nominee selected by a Republican president. For starters, his anti-abortion views were not disqualifying, as they would be shared by any GOP pick. Second, Roberts’ statements and writings did not reflect the extremism on social issues, criminal justice, and economic regulation exhibited by some of the other favorites on the right-wing short list. And despite his opposition to the Voting Rights Act and AIDS advocacy during his tenure in the Reagan administration, John Roberts had not made a career as a partisan hatchet man. In a nutshell, I believed Senate Democrats should give President Bush some latitude because Roberts simply was neither a Robert Bork nor a Harriet Miers.
But in 2017, my position has long since changed. Democrats must do whatever it takes to block 10th Circuit Court of Appeals Judge Neil Gorsuch, President Trump’s nominee to fill the seat left vacant almost a year ago by the death of Antonin Scalia. This isn’t because of a severe outbreak of “Roberts Remorse,” though I along with many others, like Professor Jeffrey Rosen and Senate Minority Leader Chuck Schumer, suffer from it. In fact, the Democratic stonewall has little to do with Judge Gorsuch himself or any of the jurists the Federalist Society and the Heritage Foundation lovingly assembled for Donald Trump.
Simply put, in refusing to give President Obama’s pick Merrick Garland so much as a hearing for 310 days, Republicans conspired to steal a Supreme Court seat. Led by Senate Majority Leader Mitch McConnell, the GOP didn’t just take an unprecedented step in obstructing Obama’s choice to replace Scalia, but shattered institutional Senate norms throughout his eight years in office. That’s why the Democratic Supreme Court slogan through at least Jan. 20, 2021 must be #EightisEnough.
Now, the best and brightest in the Republican Party and its amen corner should have no problem with this conclusion. After all, they argued for precisely the same thing in the last weeks of the 2016 campaign, when a victory by Democrat Hillary Clinton seemed likely.