Why Neil Gorsuch's Supreme Court Tenure Will Be Tainted Off the Bat

His path to the Court is riddled with historically and constitutionally exceptional circumstances

There appear to be at least 41 Democratic Senators who support a filibuster of Neil Gorsuch. Credit: Justin Sullivan/Getty

In 1927, Babe Ruth had one of the best individual seasons in professional baseball history. Not only was he the most dominant player on what's widely lauded as the best Yankees team ever, but he also set one of baseball's most hallowed records that year: 60 home runs in a season.

That number stood for decades, until 1961, when another Yankee outfielder staged a remarkable run at Ruth's record. On the last day of that season, Roger Maris hit his 61st home run, eclipsing Ruth in front of his hometown crowd.

But he didn't do so without serious, long-lasting controversy. You see, when Ruth set his record, there were only 154 games in a baseball season. But when Maris hit his 61st home run, baseball was in its first year of having 162 games in a season. To Babe Ruth devotees, Maris' record didn't measure up to Ruth's. The commissioner at the time discredited Maris, and a sportswriter suggested a solution: put an asterisk next to Maris' record in the "official" record book.

As myths go, the Maris asterisk is one of the greatest in sports history. In reality, until recent years, there was no official baseball record book, and there never was and isn't now an asterisk next to Roger Maris' 61-home-run season. But that didn't stop Maris from feeling slighted until his death, nor from pop culture memorializing the asterisk in the Billy Crystal movie 61*. As typography marks go, the asterisk will always be associated with this myth, and a sense that the person with it has a tainted and unworthy accomplishment.

What does all this have to do with Neil Gorsuch and the Supreme Court? Well, if Mitch McConnell and his fellow Senate Republicans follow through on their promises later this week, they could make Gorsuch the first Supreme Court justice with that mythical asterisk next to his name. In fact, Gorsuch's name could have four such marks.

It now appears that in order for Gorsuch to be confirmed to the Court, Senate Republicans are going to have to destroy Senate rules – after having already departed from time-honored constitutional practice to even get us to the point of considering Gorsuch.

Here are the asterisks that could follow Gorsuch throughout his Supreme Court tenure:

* The first is for the Republicans' crime of grand theft judiciary last year. When President Obama nominated Merrick Garland, a respected moderate judge, to the Supreme Court, the Republicans took the unprecedented path of refusing to even have a hearing for him. They said it wouldn't be right to consider a new justice during an election year – a "rule" that had no basis in either history or constitutional design, and one that Mitch McConnell practically admitted last weekend was a smokescreen.

** The second is for the Republicans continuing with the Gorsuch nomination despite the fact that the campaign of the president who nominated him is under investigation for possibly the most harrowing political crime in United States history: colluding with a foreign government to steal the 2016 election. This investigation is ongoing and seems to get more serious by the day, and yet the Republicans are moving forward with Trump's lifetime appointment anyway.

*** Gorsuch would get a third asterisk for likely being the first Supreme Court nominee to be filibustered by the minority party. As of now, there appear to be at least 41 Democratic Senators who support a filibuster of Gorsuch and will vote against cloture, the Senate procedure used to end a filibuster. If that happens, under current rules, the Senate would not be able to vote on Gorsuch – and the president would be forced to choose between waiting for the Democrats to give in or nominating someone else for the position.

**** The fourth asterisk is for what might happen next. If the Democrats successfully filibuster Gorsuch, McConnell and his party have one trick up their sleeve: They can vote to change the Senate rules. Called the "nuclear option," this maneuver would obliterate the Senate tradition of respecting the minority party. Republicans can get rid of the filibuster with a bare majority (50 votes plus a tiebreak from Vice President Pence). There is very loud talk from Republican Senators that they will take this path if the Democrats do indeed follow through with their filibuster. If they go down this path, the Republicans would be changing the Senate forever.

Add it all up, and what we have is a possible Supreme Court justice whose path to the Court is riddled with historically and constitutionally exceptional circumstances. If he becomes a justice, it will only be because the Republicans stole the seat, pursued his confirmation in the face of an investigation into an existential threat to U.S. democracy, ignored the unprecedented dissent of the minority party and fixed the rules in their favor.

A lifetime appointment to the Supreme Court is a plum job, especially for a young true-believer-conservative like Gorsuch. However, given the extraordinary events that had to line up to get him to this point, and the asterisks that will appear after his name for the rest of American history if confirmed, maybe Neil Gorsuch should consider stepping aside rather than living with the kind of shame and ignominy that, rightly or wrongly, Roger Maris took to his grave.