EDITORIAL: The Gorsuch nomination proves partisanship pays — if you have the votes

Feb. 02--In September 1986, a Democrat-controlled U.S. Senate confirmed Antonin Scalia, President Ronald Reagan's nominee to the Supreme Court, by a vote of 98-0. Until his death nearly a year ago, Scalia was the court's conservative lion. The process of replacing him has demonstrated how thoroughly the disease of blind partisanship has infected America. It's got to stop somewhere.

On Tuesday, President Donald Trump nominated Neil McGill Gorsuch, 49, to fill Scalia's seat. He's an Oxford, Columbia and Harvard Law-educated Republican blue-blood. Gorsuch has impeccable legal credentials, but then, so did Merrick Garland, whom President Barack Obama nominated for the same seat last year. Garland never came close to getting a confirmation hearing, much less a confirmation vote. Some Republican senators wouldn't even let him in their offices.

Senate Democrats must decide if they want to play the same nasty game with Gorsuch. If they employ the filibuster, Democrats can derail confirmation proceedings. But Republicans hold the majority. Though it might eventually backfire on him, Majority Leader Mitch McConnell, R-Ky., could invoke the "nuclear option" of eliminating the 60-vote cloture rule.

Democrats could fight like Texans at the Alamo but to the same end. Absent some unforeseen bombshell, Gorsuch would surely be confirmed. Elections have consequences -- November's more than most -- and short of war and peace, lifetime Supreme Court appointments are the most critical.

Nonetheless, some Senate Democrats want a fight, urged on by supporters alarmed at Gorsuch's legal philosophy, angry at Garland's mistreatment and furious that Trump, who lost the popular vote, gets to mold the Supreme Court. But you don't bring a knife to a GOP gunfight.

Gorsuch's record suggests he is a more conservative version of Scalia, likely to favor corporate rights over workers' rights, hostile to reproductive rights, in favor of the legalized bribery that is the campaign finance system.

But he is, by all accounts, an eminently qualified jurist and, like Scalia, a brilliant writer. He will likely be evaluated as "well qualified" by the American Bar Association. Politics aside, judicial qualifications really are what matter.

Senate decorum and respect started to erode the year after Scalia's confirmation, when Democrats savaged Reagan's nomination of Robert Bork. Reagan sent them Anthony M. Kennedy instead. Kennedy, who generally votes with conservatives, has nonetheless cast important votes upholding reproductive rights and gay marriage. At 80, Kennedy is said to be considering retirement; Democrats might want to delay provoking the nuclear option for that event.

The last true "swing" justice was John Paul Stevens, an appointee of Republican Gerald Ford whose moderate views were largely unpredictable. He retired in 2010, a year when unflinching partisanship infected the body politic.

"When Stevens leaves," the lawyer and legal scholar Jeffrey Toobin wrote presciently, "the Supreme Court will be just another place where Democrats and Republicans fight."

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