Neil Gorsuch Confirmed to the Supreme Court

The Senate has confirmed Neil Gorsuch as an Associate Justice of the Supreme Court.

On February 13, 2016, Supreme Court Justice Antonin Scalia died unexpectedly while on vacation. Widely-regarded, even by his detractors, as a brilliant legal mind with an incisive wit, Scalia’s death left a massive vacancy on the Supreme Court in the last year of President Obama’s term as President.

Mr. Obama had appointed two Justices to the high court in his first seven years in office and it looked almost certain that he would get the opportunity to radically alter the balance of the Court, which had, up to the death of Justice Scalia, been balanced (at least on political issues) with four justices on the “right,” four on the “left,” and Justice Kennedy as the swing moderate. While most of the Court’s decisions are not decided 5-4, the ones that get the most attention from the press and public usually are. Given that Justice Scalia was one of the hardest “right” justices, almost anyone who President Obama would appoint would shift the Court leftwards.

President Obama appointed the Chief Judge of the Court of Appeals for the DC Circuit, Merrick Garland, to replace Justice Scalia. It fell, then, to the Senate to decide what was going to happen. More to the point: it fell to Senate Majority Leader Mitch McConnell.

Here’s the setting: the United States was in the midst of a major Presidential campaign. The Republican Senate majority was up for grabs. The outgoing President was looking to leave a lasting legacy on the Supreme Court and radically change its balance. With this backdrop, Senator McConnell decided to take the biggest gamble in modern politics. McConnell refused to even hold hearings on Obama’s appointee.

The left was sent into apoplexy over the decision, but the right was galvanized. The election now became about, inter alia, who would fill Justice Scalia’s seat on the Supreme Court. Republicans, wary of Donald Trump’s conservative bona fides, were given an ultimatum: would you trust Hillary or Trump to fill that seat? As a further measure taken to assuage the fears of conservatives, Mr. Trump released a list of 21 conservative jurists that he vowed to use to pick his nominee to the Court.

Mr. Trump was elected President and followed through on his pledge. The President selected Neil M. Gorsuch, a judge on the 10th Circuit Court of Appeals with impeccable educational and judicial credentials, from his list. Judge Gorsuch, who was confirmed unanimously to the 10th Circuit, was met with near-universal praise from Republicans and conservatives. Even Mr. Trump’s biggest opponents on the right begrudgingly gave the President credit for an enlightened choice.

Judge Gorsuch, who clerked for Justices Byron White and Anthony Kennedy, has almost never been overturned in his decisions by the Supreme Court and has been in the majority of the 10th Circuit’s opinions upwards of 97% of the time. He has received bipartisan acclaim and the highest possible rating from the American Bar Association.

However, Democrats, understandably upset about the Garland nomination, and getting huge pressure from the left in their Party to oppose anything that is put forward by President Donald Trump, attempted to block Gorsuch’s confirmation. In 2003, the Democrats used a procedural move, the filibuster, to prevent the confirmation of Miguel Estrada, a George W. Bush judicial nominee. Basically, this meant that 41 Democrats could, theoretically, prevent a nominee from being confirmed. The way the rule worked was that, in order to cut off debate in the Senate (cloture, generally), Democrats, in this context, would require 60 votes. If a nominee didn’t get to 60, then debate couldn’t be cut off, and the nominee could never advance to confirmation.

During the Obama Administration, Democrats took control of the Senate. In 2013, when Republicans had decided to employ the same filibuster rule that the Democrats had during the Bush Administration, then-Majority Leader Harry Reid took the step to eliminate, procedurally, the use of the filibuster for executive appointments (outside of Supreme Court nominees). Democrats, notably, did not filibuster Supreme Court nominees during the Bush Administration and Republicans did not filibuster Supreme Court nominees during the Obama Administration. However, the Republicans reclaimed the Senate and a Republican occupies the White House and the left is smarting from its beating in November.

Democrats, led by Senator Chuck Schumer, despite Judge Gorsuch’s qualifications and uneventful (though the longest in decades) confirmation hearing, decided to engage in the first partisan filibuster of a Supreme Court nominee in history. The only other time that Senators blocked a Supreme Court nominee with a filibuster was a bipartisan effort to block Abe Fortas’ elevation to Chief Justice over ethical concerns.

Republicans, understanding that, if Judge Gorsuch couldn’t pass the Democrats’ litmus test, that no one could, and also realizing that the voters explicitly decided in favor of Trump to give him the chance to appoint a Supreme Court Justice, eliminated the 60-vote threshold for Supreme Court nominees. While there is sure to be a time when Democrats push through a liberal Justice with a Democrat in the White House as a result of this move, given the circumstances, there was nothing that Republicans could do aside from act to put Gorsuch on the Court.

Justice Gorsuch was confirmed by the Senate and will take his place as the 113th Associate Justice of the United States Supreme Court. He is a fitting heir to Justice Antonin Scalia and his judicial philosophy is clearly in-line with what Americans should want their Court to represent.

The big question going forward is whether or not President Trump will get another opportunity to appoint a Justice to the Supreme Court before the 2018 midterm elections. There are rumors that Justice Kennedy may step aside after this Term of the Court (ending in June) and that calculus has influenced the names Mr. Trump put forward as potential early replacements (several former Kennedy clerks, like Gorsuch). There is also the biological reality that several Justices, like Ruth Bader Ginsburg, are aged. Whatever the future holds, it’s clear that the precedent is set for President Trump to leave a lasting mark on the Supreme Court. This was what the voters elected him to do.

Welcome Justice Gorsuch!

Matt McDaniel

Attorney and Political Commentator

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