In May 2002, four years before he was appointed to the U.S. 10th Circuit Court of Appeals, Neil Gorsuch — nominated by President Trump on Tuesday for a Supreme Court seat — wrote a eulogy for Supreme Court Justice Byron White, for whom he had clerked. In between extolling White's excellence in pro football and judicial temperament, Gorsuch decried the partisan bickering over filling judgeships. White was confirmed in 1962, he noted, "less than two weeks after his nomination; his hearing lasted 90 minutes."
Today, "politicians and pressure groups on both sides declare that they will not support nominees unless they hew to their own partisan creeds," Gorsuch wrote. "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." After noting the gaping vacancies in the federal judiciary "because of partisan bickering over ideological 'control'" of certain courts — an equally large problem in 2017 as in 2002 — Gorsuch singled out two "of the most impressive judicial nominees" who had been "grossly mistreated" by the Senate:
Take Merrick Garland and John Roberts, two appointees to the U.S. Court of Appeals in Washington, D.C. Both were Supreme Court clerks. Both served with distinction at the Department of Justice. Both are widely considered to be among the finest lawyers of their generation. Garland, a Clinton appointee, was actively promoted by Republican Sen. Orrin Hatch of Utah. Roberts, a Bush nominee, has the backing of Seth Waxman, President Bill Clinton's solicitor general. But neither Garland nor Roberts has chosen to live his life as a shirker; both have litigated controversial cases involving "hot-button" issues. As a result, Garland was left waiting for 18 months before being confirmed over the opposition of 23 senators. [Gorsuch, via UPI]
John Roberts is now chief justice of the Supreme Court, but Merrick Garland is still waiting, almost a year after former President Barack Obama nominated him to fill a vacant Supreme Court seat, and Republicans refused to even give him a hearing. "So much for promoting excellence in today's confirmation process," as Gorsuch wrote in 2002.