Neil Gorsuch decried role of politics in confirmation process in 2002

By Allen Cone   |   Feb. 1, 2017 at 11:06 AM
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Feb. 1 (UPI) -- Neil Gorsuch in 2002 decried the role politics plays in the confirmation of judges, a process that could prove lengthy for his own Supreme Court nomination.

In a column written for UPI in 2002, Gorsuch also praised fellow Judge Merrick Garland, whose nomination to the court last year was scuttled by Senate refusal to vote at the end of President Barack Obama's administration.

Gorsuch, whom President Donald Trump nominated for the high court Tuesday, criticized the Senate's politicized confirmation process after the death of Associate Justice Byron White in April 2002, saying the justice "accomplished more in one life than most could in three."

He noted how White was confirmed less than two weeks after his nomination and the hearing lasted 90 minutes. White was nominated by President John F. Kennedy in 1962.

"He was selected not because of partisan ideology, but because of his integrity, accomplishment and life experience," wrote Gorsuch, who at the time was a litigation partner at Kellogg, Huber, Hansen, Todd & Evans in Washington and a former law clerk to White.

"Today, there are too many who are concerned less with promoting the best public servants and more with enforcing litmus tests and locating unknown 'stealth candidates' who are perceived as likely to advance favored political causes once on the bench," he wrote.

"Politicians and pressure groups on both sides declare that they will not support nominees unless they hew to their own partisan creeds. When a favored candidate is voted down for lack of sufficient political sympathy to those in control, grudges are held for years, and retaliation is guaranteed."

He noted "excellence plainly is no longer the dispositive virtue, as it was to President Kennedy."

Gorsuch mentioned how judicial seats went unfilled in 2002, including half the seats in the Sixth Circuit "because of partisan bickering over ideological 'control' of that circuit."

Today, 116 of the 890 authorized judgeships are vacant, including 90 of the U.S. District Court seats and 17 of 179 in the U.S. Court of Appeals.

The vacancies include the one on the Supreme Court for almost a year after Associate Justice Antonin Scalia's death on Feb. 13. Obama nominated Garland for the seast on March 16, but Republicans refused to grant a hearing.

That meant Trump was able to nominate Gorsuch, who is on the U.S. Court of Appeals for the 10th Circuit in Colorado.

In the column, Gorsuch wrote that Garland was "grossly mistreated" in the 1990s as an appointee to the U.S. Court of Appeals in Washington. The full Senate failed to set a vote to confirm in December 1995 and he was renominated by President Bill Clinton in January 1997.

Gorsuch said Garland was "left waiting" for 18 months before he was confirmed over the opposition of 23 senators. Sen. Orrin Hatch, R-Utah, actively promoted Garland.

He also noted how John Roberts' appointment to the Court of Appeals was also held up. In 2005, Roberts was confirmed as chief justice in a 78-22 Senate vote.

"Both are widely considered to be among the finest lawyers of their generation," Gorsuch said.

"But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving 'hot-button' issues."

After Republicans refused to hold a hearing for Garland's nomination, Gorsuch could face similar speed bumps to his own confirmation. Sen. Jeff Merkley, D-Ore., said Tuesday the Supreme Court was being stolen from from the Obama administration. Republicans have enough votes in the Senate to confirm Gorsuch, but not enough to break a filibuster if Democrats choose to hold one.

In describing White, Gorsuch wrote: "It would be a beneficent thing if Justice White's passing served as a wake-up call to both political parties that their responsibility in picking judges is to help the nation find objectively excellent public servants, not to turn the process into an ideological food fight where the most able are mistreated while trimmers and the mediocre are rewarded."

White was a resident of Colorado like Gorsuch.

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