2 views of the Supreme Court

The nomination of Judge Neil Gorsuch for the U.S. Supreme Court comes against a backdrop of unusual political conflict. Conservatives are very pleased that this capable nominee is, by all appearances, a worthy successor to the late Justice Antonin Scalia. But President Donald Trump's choice should offer re-assurance that not much will change.

Gorsuch has the standard background for the Supreme Court. He's got an Ivy League education. He clerked for the Supreme Court. He practiced in Washington, D.C. He served in the executive branch. His service on the 10th U.S. Circuit Court of Appeals has been distinguished and marked by bi-partisan respect for his demeanor and decisions.

His decisions are marked by clarity. He believes that legal questions have correct answers. His future decisions are unlikely to include the sentence, "Today we announce a fifteen-part balancing test."

Gorsuch has also been a proponent courts giving less deference to agency interpretations of federal statutes. Under the rule announced by the Supreme Court in Chevron v. NRDC in 1984, courts have generally upheld an agency's interpretation of the statute that the agency implements.

The rationale supporting Chevron has been that agencies have the expertise to interpret the increasingly complex laws they are charged with administering. That is certainly true relative to courts, but that advantage has also resulted in shifting power to the executive branch and away from courts. It also allows Congress to avoid making politically painful policy choices. The overall result is a drift in the locus of decision-making to the far corners of the executive branch.

Gorsuch believes that agencies should have less discretion to interpret statutes. This is an important difference between his philosophy and Scalia's. At a time when liberals are aghast at the wide discretion of an executive branch controlled by Trump, liberals should see opportunity in a change that would reduce executive power.

Gorsuch clerked for Justice Anthony Kennedy, giving conservatives hope that the nominee will be able to bring the swing justice to the conservative side more frequently. Less discussed is the equally plausible view that Kennedy might bring his protégé along when he sides with the court's liberals.

Conservatives have long experience in disappointment with Supreme Court appointments. Justices David Souter, Sandra Day O'Connor and Kennedy have, to varying degrees, disappointed conservatives who prefer nominees in the mold of Robert Bork and Justices Scalia, Clarence Thomas and Samuel Alito. Trump's pre-election short list of possible nominees signaled to conservatives who were lukewarm to his candidacy that his judicial nominations would be in line with conservative preferences. Barring "growth" in office if he is confirmed, a Gorsuch should please conservatives by overall adherence with his predecessor's philosophy.

Progressives still seethe over the Senate's refusal to consider former President Barack Obama's nomination of Judge Merrick Garland and missing out on the prospect of shifting the direction of the court. Conservatives nurse their own grudge over the failed nomination of Bork. If the past 30 years of confirmation battles has taught anything, it's that each side will do whatever it takes to obtain the best outcome it can.

One irony of Gorsuch's nomination is his own view of the nomination process. In a 2002 article criticizing the Senate's handling of judicial nominations, where he criticized long delays faced by John Roberts and Merrick Garland for confirmation to the U.S. Court of Appeals for the D.C. Circuit in spite of their impeccable qualifications.

Unfortunately for Democrats, the Senate's refusal to consider Garland's nomination in 2016 was consistent with the so-called "Biden Rule." In June 1992, then-Senator Joe Biden stated that a president should not nominate a justice once the presidential political season had begun and that it would be appropriate for the Senate not to consider a nominee late in a president's term.

The American people decided that they were fine with the Republicans' refusal to consider Garland. They also decided that they preferred to have Trump nominate Scalia's successor instead of Hillary Clinton. To the extent that liberals believe that this seat was "stolen" and that any nominee besides Garland should be opposed, the electorate is to blame.

The last time that the Senate looked at his qualifications, it consented to his circuit court appointment unanimously. Nothing in his record on the 10th Circuit suggests that he is any less qualified for the Supreme Court. Former Solicitor General Neal Katyal, while disagreeing with Gorsuch philosophically, has warmly endorsed his nomination. Given that he's replacing Scalia and not a liberal justice, Gorsuch represents stability and continuity with the Supreme Court's recent past.

Liberals taking the long view would be wise to keep their powder dry for a nomination that would shift the court's balance. In the bitter fight over Bork's nomination to the Supreme Court in 1987, liberal senators could point to their near-unanimous support for Scalia's nomination and acceptance of a "true conservative" while painting Bork as a radical.

Just as Democrats from states that Trump won who are up for election in 2018 might be reluctant to support a filibuster of Gorsuch's nomination now, blue state Republicans facing re-election in the future might be reluctant to eliminate the filibuster for Supreme Court nominations in the future. Preserving the filibuster now would strengthen the ability of Democrats to resist a conservative nominee down the road. Thus, Democrats should carefully consider a path of obstruction over Gorsuch that would surely lead to the elimination of the filibuster.

The coming battle, whether or not it leads to a filibuster, will not be about Gorsuch. Instead, it will reflect the perpetual battle between two views of the Supreme Court. Conservatives believe that the Supreme Court should not be a permanently seated de facto constitutional convention where five people can announce new and previously undiscovered rights and federal powers that are not found in the text of the Constitution but just happen to align with the beliefs of 85 percent of people who attend the American Bar Association convention or a typical TED talk.

Conservatives think that courts should go where the carefully analyzed words of the Constitution and statutes lead. Thankfully for the rule of law, this is what happens in most cases. During the October 2015 term, for example, Justices Alito and Elena Kagan agreed on 82 percent of the court's decisions. Gorsuch is probably going to align with Alito more than Kagan on the other 18 percent. That will not shake the republic to its foundations.

For better or worse, the Senate's refusal to take up Garland's nomination meant that the American people got to decide who would nominate Scalia's successor. They chose Trump. Trump has now chosen Gorsuch. He should be confirmed.