The president made an outstanding choice with his nomination Tuesday of Judge Neil Gorsuch to the Supreme Court. Justice Antonin Scalia’s passing was a significant loss for the court and for our country. Gorsuch’s impressive background and long record of service, however, give me confidence he will carry forward Scalia’s legacy of faithfully applying the law and the Constitution.
Like Scalia, Gorsuch understands the constitutional limits on his authority, and he knows that the duty of a judge is to apply the law evenhandedly rather than ruling with bias toward one party or another. When the Senate confirmed Gorsuch to his current judgeship, the bipartisan support was so overwhelming that he was approved without a single vote in opposition. I hope he can expect fair consideration again now.
Recent actions by Senate Democrats, however, do not inspire confidence.
Hear that sound?
It’s the far left hitting rewind on the Supreme Court attack eight-track they’ve been playing for more than 40 years. When Gerald Ford nominated John Paul Stevens, they attacked Stevens as anti-woman. When Ronald Reagan chose Anthony M. Kennedy, they said Kennedy was unqualified. When George H.W. Bush put forward David Souter, they declared Souter a threat to minorities. The attacks seem ridiculous today, but they’re an important reminder that no matter who a Republican president nominates, the far left will say the same things. If you think you’ve heard moldy oldies like ‘Extreme!,’ ‘Scare Quotes!’ and ‘Anti-[Fill in the blank]!’ before — well, you have, and you’re about to hear a lot more of the left’s apocalyptic rhetoric, on repeat and remastered in full digital surround.
Let’s focus on the facts instead.
When our nation lost Scalia in the middle of a contentious presidential election, I looked to the precedent set forth by Democratic Vice President Joe Biden, who when he was Senate Judiciary Committee chairman declared that Supreme Court vacancies arising in the midst of a presidential election should not be considered until the campaign ended. It was, he said, ‘what history supports [and what] common sense dictates’ and the only way to prevent the nomination process from being further ‘wracked by discord and bitterness.’ It’s what we know today as the Biden Rule.
I decided to follow this precedent — just as President Barack Obama’s former legal counsel admitted she would have recommended to Senate Democrats too, had the shoe been on the other foot — and was clear all along that the next president, whether Democrat or Republican, would name the next justice. I maintained that position even when it seemed inevitable to many that Hillary Clinton would be making that choice.
The election is now behind us. The precedent for these circumstances is to respect that result and give the nominee of the new president due consideration followed by an up-or-down vote. That’s how Republican senators treated the nominees of newly elected Democratic Presidents Bill Clinton (Ruth Bader Ginsburg and Stephen G. Breyer) and Barack Obama (Sonia Sotomayor and Elena Kagan), and that’s how Democratic senators should treat the newly elected president’s outstanding nominee today.
Gorsuch is universally respected on both sides of the aisle as a consistent, principled and fair jurist. He ‘has a sense of fairness and impartiality that is a keystone of being a judge,’ as one Democratic senator and former Obama Cabinet official put it, and he’s right. Gorsuch follows the law where it leads him, not where he wants it to, which is a true testament to the man he’ll succeed. ‘Perhaps the great project of Justice Scalia’s career,’ Gorsuch said last year, ‘was to remind us of the differences between judges and legislators.’ Indeed it is. Scalia will be a tough act to follow, but Gorsuch will continue his legacy of fair and impartial justice.
Of course, as history teaches, we already know that the far left will throw hyperbolic attacks at this nominee regardless of his credentials. It actually started before he was even nominated. While it might be difficult for Democratic senators to resist this siren song, for the sake of our country they must. This is not the time for further division. This is not the time for political revenge. This is the time for bringing our country together after a difficult election. As Biden recently implored his fellow party members, they should ‘give the nominee a hearing and a vote.’
Justice Antonin Scalia’s seat on the Supreme Court does not belong to one president or one political party. It belongs to the American people. We now have a new president who has nominated a superbly qualified candidate to fill that ninth seat. I invite Democrats, who spent months insisting ‘we need nine’ justices, to join us in following through on that advice by giving the new president’s nominee fair consideration and an up-or-down vote — just as we did for past presidents of both parties.
Mitch McConnell is a Republican U.S. Senator from Kentucky.