President Donald Trump’s nominee to the Supreme Court will be introduced on Monday by an unlikely suspect: a former top lawyer in the Obama administration who is currently spearheading an attack on Trump’s revised travel ban.
Neal Katyal served from 2010-2011 as acting solicitor general for President Barack Obama and he believes liberals should back Gorsuch for the Supreme Court.
Katyal’s choice to support Gorsuch highlights a dilemma for Democrats. They remain seething mad that Obama’s pick, Merrick Garland, was blocked by Republicans without even a hearing. On the other hand, they recognize that, barring any late unexpected disclosures, Gorsuch is highly qualified for the spot and will likely win confirmation.
Liberals know that at the end of the day they are replacing a conservative with a conservative and might want to save their firepower in case Trump gets a chance of another pick. Say, for example, if swing vote Anthony Kennedy were to retire or the liberal lioness Justice Ruth Bader Ginsburg.
Katyal, a former clerk for Justice Stephen Breyer, argued 13 cases in the Solicitor General’s office and 19 more as a private attorney. He has two more arguments coming up next month.
In an op-ed last January he openly admitted to having grave misgivings about Trump.
“I am hard-pressed to think of one thing President Trump has done right in the last 11 days since his inauguration,” Katyal wrote January 31. He called Garland “perhaps the most qualified nominee ever for the high court,” but he said in the new political climate, if the Senate “is to confirm anyone,” Gorsuch should be at the top of the list.
“I believe this, even though we come from different sides of the political spectrum,” Katyal wrote.
“I have seen him up close and in action,” he said. “He brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.”
Katyal has served with Gorsuch on the Federal Appellate Rules Committee and their paths may have crossed earlier in their careers on cases concerning national security.
Some liberals have been critical of Katyal’s support.
“The elite legal class has closed ranks around Gorsuch and this is just the latest example,” said Nan Aron, President of Alliance for Justice.
“It seems as if too many of them are too impressed by Gorsuch’s personal polish and resume to see past them to how damaging his record is when it comes to the impact on everyday people,” she said.
But Katyal’s support may also resonate with some of the sitting justices. Several have noted of late how political the confirmation process has become.
During a talk earlier this year organized by Stanford’s Office of Religious Life, Ginsburg lamented how the confirmation process has changed, recalling that one Republican senator who supported her back in 1993, “today wouldn’t touch me with a 10-foot pole”.
The 83-year-old justice, who was confirmed 96-3, allowed that while she is still friends with the senator, Utah’s Orrin Hatch, the confirmation process has degraded.
“I wish there were a way I could wave a magic wand and put it back when people were respectful of each other and the Congress was working for the good of the country and not just along party lines,” Ginsburg said.
“Someday there will be great people,” she said, “great elected representatives who will say ‘enough of this nonsense, let’s be the kind of legislature the United States should have.’ I hope that day will come when I’m still alive. “