If Antonin Scalia died today, and Donald Trump thereafter nominated Judge Neil Gorsuch as his successor, I might support Judge Gorsuch’s confirmation. Although Judge Gorsuch has not yet established himself as a jurist of any distinction, he is generally regarded as a capable judge with a good character. Moreover, although he is a very conservative jurist, he would be replacing a justice with a similar ideological disposition. In such circumstances, just as I supported the confirmation of Judge John Roberts to succeed Chief Justice William Rehnquist, so too would I be inclined to support the confirmation of Neil Gorsuch to succeed Antonin Scalia, even though I strongly disagree with Gorsuch’s very conservative ideology.

But Antonin Scalia did not die today. He died almost a year ago, and President Barack Obama nominated Chief Judge Merrick Garland to succeed him. Chief Judge Garland is a jurist of impeccable credentials and personal character who is widely celebrated for his moderate approach to the law. President Obama nominated Garland not only because of his distinguished reputation as a jurist, but also because as a relatively moderate judge he should have been more than acceptable even to the most conservative Senate Republicans. In typical Obama fashion, Garland’s nomination was an effort to compromise in order to win the support of Senate Republicans.

Chief Judge Garland should have been confirmed easily. Indeed, every Supreme Court nominee in living memory with anything approaching Chief Judge Garland’s impeccable credentials and record of moderation has been easily confirmed by the Senate, without regard to whether the Senate was controlled by the President’s party or by the opposing party. This was true, for example, of such Republican nominees to the Court as Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter. Even the extremely conservative Antonin Scalia was confirmed by a vote of 98-0.

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