[Jonathan H. Adler] No, obstruction of Neil Gorsuch is not about Merrick Garland

President Trump shakes hands with Judge Neil Gorsuch, left, accompanied by Gorsuch’s wife, Marie Louise Gorsuch, after Trump nominated him to the Supreme Court. (Chip Somodevilla/Getty Images)

President Trump’s just-announced Supreme Court nominee had not even left the East Room of the White House before my notifications were filled with news releases and tweets urging opposition to Neil Gorsuch’s confirmation. Immediately, the partisan hypocrisy concerning judicial nominations was on display.

The usual pitch against a Supreme Court nominee is that he or she will alter the balance of the court, but that argument has no purchase here. Replacing one conservative jurist with another won’t alter the balance of the court much at all.

Instead of trying to maintain that the confirmation of Judge Gorsuch and the maintenance of the Supreme Court’s current balance would somehow imperil individual rights, Senate Democrats and their allies are instead arguing that Gorsuch must be blocked to retaliate for Senate Republicans’ unfair treatment of Merrick Garland, whom President Obama chose last March to replace Justice Antonin Scalia but who never received Senate confirmation. This seat, the argument goes, was “stolen” from a Democratic president, and must therefore be kept open. This injustice, they argue, justifies a filibuster of Gorsuch.

[Hugh Hewitt: Democrats made confirmation easier for Trump nominees. The GOP should fix that.]

The problem with this argument is that most Senate Democrats were willing to filibuster a Supreme Court nominee before Garland was nominated, let alone blocked by Republicans. Indeed, before Barack Obama was even elected president, prominent Senate Democrats and progressive activists tried (but failed) to filibuster President George W. Bush’s nomination of Samuel Alito. Thus, the argument that the only reason Senate Democrats would filibuster Gorsuch is payback for Garland is complete and utter nonsense.

Let’s review the history.

A majority of Senate Democrats (25 of 45) voted to filibuster Bush’s nomination of Judge Alito to replace Justice Sandra Day O’Connor. The Senate Democratic leadership was united in opposing cloture, and those voting in support of the filibuster included Sens. Chuck Schumer, Dick Durbin, Dianne Feinstein, Hillary Clinton and Barack Obama. At the time, Sen. John Kerry claimed a vote against cloture on the Alito nomination was “a vote of history.”

Progressive activist groups such as the Alliance for Justice and People for the American Way likewise supported a filibuster of Alito. When the filibuster effort failed, the PFAW’s Ralph Neas called it “excruciatingly disappointing.” AFJ President Nan Aron said those who sought to filibuster Alito “showed extraordinary principle.”

Prominent liberal academics, including some who claimed the Senate had an obligation to hold an up-or-down vote on the Garland nomination, urged Senate Democrats to filibuster Alito as well. Noted constitutional scholar Erwin Chemerinsky, for instance, wrote in 2006 that “Democrats must filibuster to block the nomination of Samuel Alito for the United States Supreme Court.”

The effort to filibuster Alito’s confirmation was not an aberration but a sign of how Senate Democrats planned to respond to future Republican nominations to the Supreme Court. How do we know? Because they said so.

[Gorsuch’s judicial philosophy is like Scalia’s — with one big difference]

After Alito was confirmed, Schumer gave a speech to the American Constitution Society in which he said he “should have done a better job” fighting Alito’s confirmation. “My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.” In other words, he should have fought harder to make the filibuster successful. In this same speech, Schumer proclaimed he would urge his colleagues not to confirm any future Suprem