Forever smudged

Apr 12, 2017 By Steven R. Peck

Neil Gorsuch is well-qualified for the Supreme Court, but how he got there will be his burden

The Supreme Court is back at full strength again. Neil Gorsuch was sworn in earlier this week, and he is hard at work. The court has been in session since October, and will remain so until June. He's got some fast pedaling to do.

The new justice has ties to the West, including Wyoming (his mother was born in Casper). It's been a while since there has been a true westerner on the Supreme Court, and those of us in this part of the country take a special interest in that.

He earned his law degree at Harvard, which, with Yale, is the clear training ground for high court judges. Eight of the nine went to one school or the other. After college he worked as a law clerk in Washington for a Supreme Court justice, Byron White (also,like Gorsuch,from Colorado originally).

Since then, Gorsuch has earned his stripes as a judge while living primarily in the Mountain Time Zone. Whether that truly will set him apart in any way from his fellow Supreme Court justices isn't likely. In his actual record as a judge, he has been strikingly similar to several others already on the Supreme Court.

That, of course, is why he was selected. In today's supercharged political environment, Supreme Court judges aren't picked for their eccentric, independent streaks. They are picked so as to adhere to the ideological imperatives of the presidents who nominate them and the Senate majorities which confirm them.

It is in this way -- the process by which Neil Gorsuch reached the court, rather than his opinions themselves -- which are likely to distinguish him through history.

By now, anyone who follows news of the high court and the court appointment process knows the story of how Gorsuch came to be seated. Two unprecedented departures from historical procedure were required. The first was allowing the court seat to remain vacant for almost a year and a half -- through one complete term of the court and three quarters of the way through another -- all to avoid allowing the twice-elected President of the United States his constitutionally guaranteed opportunity to name a justice to fill the vacancy.

The second was changing the rules of the Senate to permit a justice to be confirmed with the fewest votes, by percentage, in the history of the body. The old 60-vote confirmation requirement, intended to at least pretend at bipartisan support for the new justice at the beginning of his term, probably is gone forever.

Soon enough, we will see if the further political machinations that tainted Gorsuch's nomination will be repeated. Does anyone really doubt that they will be, whether by Republicans or Democrats?

Neil Gorsuch did not create the deplorable tactics that have landed him on the court. He played no part in the willful destruction of process in the Senate, but he has benefitted from it. His is a face we can expect to see on the highest court in the land into the middle of the century, and his name always will be linked to the occasion when the Senate threw out more than 200 years of sensible procedure for the sake of short-term political advantage.

Gorsuch now will have to bear that added burden as he does his vital work -- which, by the way, he is very well-qualified to do.

The "greatest deliberative to body in the world," as the Senate boastfully calls itself, is supposed to be better than that. The court appointment process was intended to remove politics from Supreme Court nomination and confirmation as much as possible. Given how political concerns now supersede everything else in Washington, perhaps it should be considered remarkable that it even took this long to produce a nomination and confirmation so tainted by bald-faced political magic.

In any case, the proverbial toothpaste is out of the tube. There have been junior high science projects proving that it can be put back in, but it takes time, technique, willingness, and infinite patience. The Gorsuch court process demonstrates clearly that those qualities have been damaged in the Senate, not just deeply but, very likely, permanently.

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