Neil Gorsuch is finally safe as a justice of the United States Supreme Court, survivor of a cheap campaign to impugn his character and his knowledge and devotion to the Constitution and the law. The justices number nine again, and Donald Trump has redeemed one of his most important promises.
In fact, it might have been the most important promise of all. Many conservatives who could never quite accustom themselves to the Donald’s sometime crudeness and easy vulgarity, swallowed hard and gave him their votes on his word to restore the court’s devotion to the Constitution.
With nine justices on the bench again, the court resumes its moderately conservative tilt, though Anthony Kennedy is subject to whim and emotion and to wandering into the no man’s land of the law, as when he put the Constitution and settled law aside to find a constitutional right to a perversion called “same-sex marriage.” Establishing a true constitutionalist majority will require one more constitutionalist judge, another judge in the mold of Antonin Scalia.
But conservatives will fool only themselves if they expect Mr. Gorsuch to render votes and write decisions that merely fit a conservative mold. He promises to be faithful to the Constitution, the founding document that conservatives owe first devotion to, but that will not necessarily guarantee that every decision will please conservative taste. Good men and true can interpret the Constitution in different ways.
Mr. Gorsuch was confirmed by a vote of 52 to 48, rendered on a party-line vote, and until the High Court breaks sharply to the right or to the left — not likely for a future that can be seen from here — such close confirmations will be the norm. Unanimous confirmation votes were once not so rare, and votes of 88 to 12, or 68 to 31 were commonplace. Not any more.
Chuck Schumer’s over-the-top predictions that the sky would fall, the oceans boil and democracy wiped off the face of the earth if the Senate rules were changed to enable confirmation of Justice Gorsuch by majority vote, have not happened yet, nor or they likely to. The dogs bark and the caravan always moves on.
Mr. Schumer went over the top because that’s what minority leaders do. But demonizing a lawyer as distinguished and as free of political blemish as Neil Gorsuch was something the senator will regret, if he does not regret it already.
Mitch McConnell, the leader of the Republican majority who held firm under considerable pressure with his vow that neither Merrick Garland nor anyone else would be confirmed in the last year of the Obama presidency, can take considerable pride in doing what he said he would do. By one perceptive account, Mr. McConnell did Merrick Garland a favor with nothing less than a mercy killing.
“The stonewalling of Garland looked unreasonable,” writes Jonathan Tobin in National Review. “In retrospect, it was actually merciful. If [Mr.] Garland had been granted a hearing he would have been subjected by Republicans to the same sort of unreasonable vilification and distortions of his record that [Mr.] Gorsuch just got from the Democrats. The only difference is that [Mr.] Gorsuch suffered the ordeal secure in the knowledge … he would eventually be confirmed. [Mr.] Garland would have been put through the same torture knowing there was no chance he would ever sit on the Supreme Court.”
Being vilified and lied about is never fun, but Justice Gorsuch can take comfort in the fact that nobody believed the lies and vilification. His reputation as a gentleman and a scholar survives, and if that’s a faint last laugh at his tormentors’ expense, he’s entitled.