Senator Jeff Merkley, D-Cuckooland—Part 2

by Ed Whelan

Continuing with Oregon senator Jeff Merkley’s New York Times op-ed urging a filibuster of the Gorsuch nomination (and numbering serially from my Part 1 post):

3. Merkley, a non-lawyer, obviously knows zilch about Judge Gorsuch. All that he can muster about Judge Gorsuch is the silly claim that Gorsuch is “an extreme right-wing jurist who has ruled dozens of times for the powerful and against the less fortunate.”

Yes, that’s the same Gorsuch whom (to cite just one of countless sources of praise) liberal Neal Katyal, acting solicitor general in the Obama administration, has hailed (also in the pages of the New York Times) as “an extraordinary judge” who “brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court”; as “someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws”; as having a record that “reveal[s] a commitment to judicial independence [and] that should give the American people confidence that he will not compromise principle to favor the president who appointed him.” Yeah, that’s some “extreme right-wing jurist.”

As for Merkley’s claim that Gorsuch “has ruled dozens of times for the powerful and against the less fortunate”: As a statistical matter, I’m sure that’s true. Gorsuch, after all, has written opinions in some 900 cases or so, and thus has probably participated in nearly 3,000. It would be amazing if he hadn’t “ruled dozens of times” for and against various classes of parties. The same is surely true of Merrick Garland and of anyone else who has been on the bench for any significant period of time.

But note what’s conspicuously missing from Merkley’s claim: Any charge that Gorsuch wrongly ruled in such cases. A Supreme Court justice takes an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.” Complying with that oath means ruling for the powerful when they are in the legal right and against them when they are not. Katyal expresses his confidence that Gorsuch “will live up to that promise.” Merkley seems not even to understand what the promise entails.

4. Merkley warns that “lowering the required vote threshold [i.e., abolishing the filibuster] will not be such an easy decision for the Republicans, because the day will come when Democrats will control both the White House and the Senate” and Republicans will then “wish the nuclear option had not been invoked.”

This argument is wrong for two reasons. First, as Senate Democrats made clear before the election, when they regain the majority, they will abolish the Supreme Court filibuster whenever they need to do so to get a Democratic nominee confirmed. Second, there’s very little difference between the sort of Democratic nominee that Republicans would filibuster and the sort they let go through. The filibuster is a much more powerful tool for Democrats against Republican appointees.

5. Oddly, after devoting almost entirely his whole op-ed to explaining that he categorically opposes the Gorsuch nomination as retribution for Republicans’ treatment of Garland, Merkley asserts in his closing paragraph that “Categorical opposition to this nomination is not retribution for the treatment of Judge Garland.” Perhaps you need to think things through a little more carefully, Senator Merkley.

6. On top of all his other screeching rhetoric, Merkley works in the Koch brothers. He claims that “the motivation” for Senate Republicans to work to keep the Supreme Court vacancy open was their desire to keep the Koch brothers’ “dark money” flowing to Senate Republicans.

Yeah, right. There were lots of reasons that converged to drive Senate Republicans to keep the vacancy open, and they related predominantly to the damage that a liberal Supreme Court majority would do to the Constitution and to various precedents (among them, to be sure, Citizens United, but only as one among many.)

Bench Memos

NRO’s home for judicial news and analysis.