Our republic depends on playing by the rules

In an opening political salvo from Democratic leadership in response to the president’s nomination of Judge Neil Gorsuch, U.S. Rep. Nancy Peloisi charged that this was a “hostile” act and that Judge Gorsuch is outside of the mainstream.

I disagree with this assessment. Judge Gorsuch is, to be sure, very conservative. People on the left, including myself, will often disagree with him on the kinds of close, hard questions with no clear answers that make their way to the Supreme Court.

But the important point, in my view, is that he does not approach the job with an agenda. He writes opinions characterized by clarity, opinions in which law and logic take front stage. Further, he is highly qualified and capable.

Attacking Judge Gorsuch as beyond the judicial “mainstream” strikes me as a charge that’s unlikely to stick because: 1.) it is not true, and 2.) many people on the left who care about the integrity of the judiciary will likely say it is not true. It is fair to raise questions about his record. And senators should by all means reserve the right to vote against him. But he should be treated with respect.

The much more difficult question for Democrats, both politically and morally, is how to approach the fact that this particular Supreme Court seat arose when President Obama had the authority to act. There is certainly a case to be made that caving, without a fight, rewards the indefensible actions of senate Republicans last year, when they showed disrespect both for the Office of the President and the United States Supreme Court (not to mention the American people) by refusing to holding hearings for another sterling, highly respected federal jurist: Judge Merrick Garland.

But we are better than that, or at least I hope we are. We play by the rules and have a special responsibility in this moment to be adults and show principled leadership at a time when Washington desperately needs it. The republic literally depends on us doing so.

In my view, in a game of escalating tit-for-tat with respect to the federal judiciary, the ultimate losers are the American people and the rule of law, as partisan games erode the integrity of the only remaining branch of government in which Americans still have faith. Judge Gorsuch is a brilliant jurist. And while I will likely often disagree with him on the rights of the accused, the right scope of extra-textual concepts like “sovereign immunity,” or how broadly to understand statutes like the Religious Freedom Restoration Act, he should be treated with respect and receive a fair hearing.

Fred Smith is a visiting professor at Emory University School of Law and a scholar of the federal judiciary and constitutional law.