According to the live blog of today's confirmation hearing at SCOTUSblog, Senator Patrick Leahy stated in his opening remarks that the Senate's refusal last year to consider an election-year nomination to the Supreme Court was "never grounded in principle or precedent." He evidently did not mention his former colleague, former Senator and Vice President Joseph Biden, but here
is what then-Senator Biden said on the floor of the Senate on exactly that subject on June 25, 1992:
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
No, I am not taking this out of context. Follow the link to read the whole speech for yourself.
Merrick Garland is a good man and a good judge, even if I don't agree with him on some very important questions. On a personal level, it is unfortunate that his nomination was scuttled on political grounds. But judicial nominations are never based purely on merit. (No, not even -- especially not -- in states that have so-called "merit selection," where the state bar has a stranglehold on nominations.) Learned Hand and Henry Friendly never made the Supreme Court, while lesser lights were promoted over them. Many brilliant lawyers never get appointed to the bench at all, while dimmer minds with better connections get the seats. That's democracy, the worst form of government except for all the others.
Judge Garland and Judge Gorsuch are not similarly situated because 2016 was a presidential election year and 2017 is not. For better or worse, the candidate who promised to appoint judges of a particular philosophy won the election, and the vacant seat is going to be filled with someone of that philosophy. Given that, is there any good reason to block this particular nominee with the drastic action of a filibuster? Revenge for the blocking of Judge Garland's nomination via a much less drastic action is not a good reason. The fact that Judge Gorsuch votes for the party whose position he believes to be correct under the law, rather than skewing the law to one side or the other based on the identity of the parties, is a strong reason to vote for
him. To vote against him, much less filibuster, on that
basis would be unprincipled, to use Senator Leahy's word.
Democrats have no more reason to oppose Neil Gorsuch than Republicans had to oppose Sonia Sotomayor or Elena Kagan. Most voted no, but they didn't filibuster, and enough voted yes to make around 2/1 votes for confirmation.