Matt McDaniel

6 minute read

There’s a good chance that, by next Monday, we will be calling Judge Neil Gorsuch “Justice Gorsuch.” The road to this change in nomenclature is uncertain, but the outcome is not really in much doubt.

Today, the Senate Judiciary Committee is set to take a vote to advance the nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the full Senate for confirmation. Judge Gorsuch easily handled his committee hearings and no skeletons came out of any closets to sink his appointment to the nation’s highest court. You wouldn’t think this if you were reading Senate Democrats’ talking points, but most of this is bluster. It’s not irrational for Democrats to oppose Gorsuch, however. Rather than the policy (Gorsuch isn’t much of a threat. He’s replacing Scalia, so there’s not much Democrats can say about Gorsuch advancing some agenda to take the court to the “right.”), Democrats are using the Gorsuch nomination to try to score points for the 2018 midterms.

Democrats (and the two Independents in the Senate who caucus with the Democrats) are defending nearly two dozen Senate seats next year. Galvanizing the left wing of the base is a good strategy to increase turnout. As we’ve talked about here before, Senate Minority Leader Chuck Schumer was left with a tough decision: do you go hard against Gorsuch and force Republicans to deploy the so-called “nuclear option” to change Senate precedent to allow a cloture vote with a simple majority, or do you choose to look “reasonable” and let Gorsuch through without a filibuster (60-vote threshold in this context) and keep your powder dry in case the President gets a second Supreme Court appointment before next year.

Senator Schumer decided that he’d rather force Republicans’ hand on Gorsuch. This makes sense because it’s unclear whether the President will get a second appointment before next year. There’s the off-chance that Justice Anthony Kennedy will step down, but, given the partisan nature of the likely replacement fight, it’s unclear whether Kennedy, widely regarded as a non-partisan, gentlemanly figure, would want to make his departure into one of the biggest political fights in years. Kennedy is seen as a swing-vote on contentions cases before the Supreme Court. If the President could get another appointment, he would be able to fundamentally alter the dynamic of the high court for at least a decade.

Democrats are unlikely to be able to block Judge Gorsuch’s final vote in the Senate. Though Republicans only have 52 members, Majority Leader Mitch McConnell has stressed that Judge Gorsuch will be confirmed. This is a clear threat to change Senate precedent and trigger the “nuclear option.” Former Majority Leader Harry Reid, the Democrat from Nevada, changed precedent in 2013 with regard to the filibuster of any non-Supreme Court nominees. This has been cited by Republicans as being the groundwork for the current precedent change.

Here’s how the precedent change would work. First, Mitch McConnell would need to have a non-debatable motion. Basically, Senators have privileges that include the notion of “unlimited debate” if they choose to exercise it. However, there are some motions, like reconsideration of a vote, that are non-debatable. So, what will happen would be a point of order on a failed vote to move Judge Gorsuch’s nomination beyond the 60-vote threshold (unless Republicans can pick off eight Democrats. As of the time of writing, only three red-state Democrats will support an up-or-down vote). The Majority Leader will make a point of order that the number of votes required to move a nomination forward is a simple majority. The presiding officer, who will be a Republican, will, symbolically, rule against the Majority Leader. The Majority Leader will then call for a vote of the Senate to overturn the ruling of the chair. This vote will be taken and only requires a simple majority. Republicans will then have overturned the ruling that a nominee to the Supreme Court must have 60 votes to advance beyond debate in favor of a nominee only needing a simple majority. Thus, a new precedent is born and the Senate will, then, reconsider the vote on Gorsuch and move the nomination ahead to a final vote. There is no doubt as to the final vote.

There may be some tricks or attempts to stop the change by Democrats (and even some Republicans who don’t like the idea of changing precedent in the Senate). However, the best way to avoid this scenario is to have eight Democrats join with Republicans to overcome the threshold to cut off debate. If they do this, there will be no need to trigger the precedent change. We will know by the end of the week (most likely, given scheduling) what option the Democrats choose.

The confirmation of Justice Gorsuch will come as a win for the President as well as for Mitch McConnell, the Republican leader in the Senate. For the President, the confirmation of Justice Gorsuch will be his keeping of a campaign promise to conservatives. We can all remember the early days of the primaries where Donald Trump’s conservative bona fides were in severe doubt (sure, they still are, with some of us contending his “alt-center” governing style is more concerned with making good deals than ideology) and then-candidate Trump coming out with a list of strong judicial candidates to replace the late Antonin Scalia. The nomination of Judge Gorsuch, despite all of the”Never Trump” handwringing is a true fulfillment of the promise that Mr. Trump made on the campaign trail.

Now, it’s true that Democrats and liberals see that kept promise as a bad thing. However, given that Hillary Clinton would likely have replaced Justice Scalia with someone on the far-left, the voters decided that they wanted a Trump nominee on the Court. They are going to get one. This will, at least up until this point, be the most consequential achievement of the Trump Administration. It’s also a much-needed legislative win following the failure of the first attempt at an Obamacare repeal.

This is also a major win for Majority Leader Mitch McConnell. McConnell was savaged by the left (and continues to be) for refusing to consider President Obama’s nomination of Judge Merrick Garland to replace Justice Scalia. McConnell reasoned that he’d prefer to make the November election (about 10 months after Justice Scalia’s death) a referendum on who should be making the Supreme Court nomination. It was a massive risk. Especially given the myriad times where Donald Trump looked like he was all-but-conceding the presidency to Hillary Clinton, Mitch McConnell’s decision to hold the Supreme Court seat open for a worthy successor to Justice Scalia was a feat of considerable political foresight on behalf of the Republican leader.

Republicans are right to lionize McConnell’s decision, but it has not come without major scrutiny from the left and Senate Democrats. Especially given the potential precedent change to push through the Gorsuch nomination, some longtime Senators have expressed dismay over the “greatest deliberative body in the world” descending into partisan rancor. Of course, a lot of this is bluster and Democrats are using McConnell’s refusal to consider Garland as a bludgeon to savage Judge Gorsuch, but, regardless, partisan acrimony isn’t really a new thing in the Senate (despite Senators asserting otherwise).

Unless something drastically changes, it looks like the Supreme Court will be back to nine justices by next week.