Gorsuch Nomination Guarantee for Compelling Political Theater

Judge Neil Gorsuch

Judge Neil Gorsuch delivers brief remarks after being nominated by President Donald Trump to the U.S. Supreme Court during a ceremony in the East Room of the White House on Jan. 31. If confirmed, Gorsuch would fill the seat left vacant with the death of Associate Justice Antonin Scalia in February 2016. (Photo by Chip Somodevilla/Getty Images)

The president’s pick for the U.S. Supreme Court, Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit, is not likely to impact the ideological balance on the Court between conservative and liberal justices. After all, nominee Judge Gorsuch would be taking the seat vacated by the late Associate Justice Antonin Scalia, who Judge Gorsuch described as a “legal lion” and whose judicial philosophy he shares.

Accordingly, if confirmed, his addition to the Court will not change the outcome on legal decisions like the constitutionality of gay marriage, affirmative action programs and religious liberty exemptions.  But just because there is little at stake in terms of the outcomes in important cases does not mean that this nomination is not important for political reasons or that the confirmation process will be without political theatre.

There are Senate Democrats who object to the nomination not because of the nominee but because of the precedent set by Senate Republicans, last year, who refused give former President Barack Obama’s nominee, Merrick Garland of the U.S. Court of Appeals for the District of Columbia, a confirmation hearing or an up-and-down vote. Some of these senators vow to create procedural obstacles for Judge Gorsuch, including filibustering his confirmation vote.

This confirmation also will present the rare opportunity for senators to question Judge Gorsuch about the constitutionality of executive action by the man who nominated him  (i.e., the president’s executive order banning the admission of people from seven majority-Muslim countries and suspending admission of Syrian refugees indefinitely).

Usually, questions regarding how a potential justice might rule are phrased in hypothetical terms but the president’s order, signed on Jan. 27, provides a live controversy of particular relevance. This promises to make Judge Gorsuch’s confirmation hearing, if held, more compelling than most.

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