Neil Gorsuch’s Confirmation Finishes One Fight, Sets the Stage for More

Neil M. Gorsuch took two oaths of office on Monday to be sworn in as the nation's 113th Supreme Court justice. Chief Justice John G. Roberts presided over a private ceremony in the justices' conference room, two hours before a public oath-taking in the White House Rose Garden.

The ceremony marked a win for President Trump and Senate Majority Leader Mitch McConnell, who gambled by keeping the seat open for almost a full year after Justice Antonin Scalia's unexpected death in February 2016.

The victory, however, was not without casualties. Gorsuch was opposed almost unanimously by Senate Democrats, who gathered enough support to launch a successful filibuster and block the nomination.

Republicans responded by amending Senate rules to allow Supreme Court nominations to proceed with a simple majority vote, invoking the so-called nuclear option. On Friday, the Senate voted 54-45 to confirm Gorsuch.

Justice Gorsuch replaces another conservative, returning a five to four conservative tilt to the Supreme Court that has existed for the past decade. In that regard, nothing has changed. However, the potential for further polarization of judicial nominees and the ultimate threat of eliminating the filibuster for legislation pose a challenge for both the Senate and Supreme Court moving forward.

What has changed?

All presidential appointments require a simple majority vote for Senate confirmation. Prior to April 6, a Supreme Court nominee had to overcome a 60 vote threshold to end debate, known as a cloture motion, before a confirmation vote. Now, all nominations can move forward with the approval of only 51 Senators.

In theory, the filibuster protected the interests of the minority, especially in the case of a lifetime appointment. Gorsuch, at 49, stands to serve on the Supreme Court for decades.

Eliminating the filibuster became known as the nuclear option because it blows up Senate procedure. In using it, Republicans have fundamentally changed the way the Senate handles an important duty and have further eroded the minority party's power.

David Boundy, a partner at Cambridge Technology Law, says the action is particularly distressing because of the lack of respect Senators have shown for procedure, using what he calls “shenanigans” to change long-standing rules.

“For 100 years, the Supreme Court has recognized that procedure is the best guarantee we have for sound results. Tampering with procedural rules to get a desired result compromises the single most important guarantee that the Supreme Court is tasked to protect,” said Boundy. “Justice Gorsuch's confirmation through procedural tampering corrupts the Court and corrupts the Senate.”

According to Boundy, Justice Gorsuch could have used the debate as an opportunity to stand above partisanship and show respect for the role of procedure. He continued, "The brave and right thing to do for Mr. Gorsuch would have been, once the nuclear option was in sight, to withdraw his nomination, subject to renomination but only if the Senate honored its procedures."

An inevitable confrontation?

On the surface, the fight over Gorsuch's nomination appears to be about President Trump and the ideological makeup of the Supreme Court. It has been made possible, however, by decades of polarization in American politics and growing mistrust between the two dominant parties.

Republicans first floated the idea of eliminating the filibuster in 2005 in response to Democratic blockades of some of George W. Bush's judicial nominees. At the time, a compromise was reached that preserved the filibuster in return for Democrats letting three of the nominations proceed to a vote.

Then Senator Harry Reid (D-NV) criticized Republican attempts to remove the filibuster, saying, “What they are attempting to do in this instance is really too bad. It will change this body forever.”

That sentiment changed in 2013 when Democrats controlled the Senate and faced numerous Republican filibusters — 79 including judicial and non-judicial nominees.

As Majority Leader, Reid used a procedural maneuver to change the rules, removing the filibuster for executive and judicial appointments, but keeping it for Supreme Court nominees. The move was unanimously opposed by Republicans, who claimed Senator Reid had broken Senate rules to accomplish his goals.

Senator Susan Collins (R-ME), who had tried to broker another compromise, said, “I think the minority will rue the day that they broke the rules to change the rules.”

Even after a second partisan showdown, both sides seemed to hold Supreme Court appointments in higher regard. In 2015, Senator Mitch McConnell (R-KY) said he would only terminate the filibuster if he had 67 votes for the change. On Thursday, he accomplished the task with 51 votes.

Partisan finger pointing

Republicans ultimately pulled the trigger on the nuclear option but blamed Democrats, claiming their hands were tied by Democratic obstruction. Democrats, for their part, argued Republicans had already caused irreparable harm to the Senate by refusing to consider Merrick Garland.

Minority Leader Chuck Schumer (D-NY) argued “When history weighs what happened, the responsibility for changing the rules will fall on the Republicans and Leader McConnell’s shoulders. When a nominee doesn't get enough votes for confirmation,” he said, “the answer is not to change the rules, it is to change the nominee.”

Senator Richard Durbin of Illinois said that both Senator McConnell and Justice Gorsuch would “enter the history books with asterisks by their names.”

Senator McConnell, who celebrated the end of the judicial filibuster by handing out high-fives to Senate colleagues, has been on both sides of the issue over the past decade, depending on the Republicans' standing in the Senate.

In 2005, Mr. McConnell praised Republican efforts to eliminate the filibuster, saying, “It is time to move away from advise and obstruct and get back to advise and consent.”

He then criticized Democrats in 2013 for changing the rules, calling the filibuster “one of the most cherished safeguards of liberty in our government,” and warning that, “some of us have been around here long enough to know that the shoe is sometimes on the other foot.”

Last week, he once again praised the move as a return to Senate tradition. “The practical effect of all this,” said McConnell, “will be to take us back to where we were.”

Judges and politics

Democrats claimed two reasons for opposing Gorsuch, and neither were based on his qualifications. One was the Republicans' failure to give Merick Garland, President Obama's pick to fill the seat, a hearing or vote.

Another was ideological. Justice Gorsuch is likely to vote with the conservative majority on corporate and religious issues, as well as LGBT rights and voting rights. In his tenure on the Tenth Circuit Court of Appeals, he sided against the Obama Administration in the Hobby Lobby case, which prohibited the Department of Health and Human Services from requiring that some secular corporations provide contraceptive coverage.

For much of the Senate's history, however, ideology alone was not enough reason to oppose an otherwise qualified nominee.

Dr. Matthew Harris, Associate Adjunct Professor in Government and Politics at the University of Maryland, points to an increase in polarization that has occurred since the 1980s. "Use of the filibuster was payback for Garland and had zero to do with the qualifications of Gorsuch," said Harris.

“Look at the history of Supreme Court nominations,” he continued, “The selectees to the court have not become more partisan, the process of Senate confirmation has become more partisan." According to Harris, Gorsuch is "no more conservative" than Justice Scalia, who was confirmed with a vote of 98-0.

Megan Zavieh, a state bar defense attorney, says that although Democrats could not challenge Gorsuch's credentials, resisting his nomination on ideological ground still served a useful purpose. “There was really no legitimate reason for opposition to a justice who had been unanimously confirmed to the Court of Appeals,” said Zavieh, “and yet the Democrat opposition served to force negotiation and politicking amongst Senators for bi-partisan support.”

She believes that the change in Senate rules will have lasting effects. “Now that the party in power can confirm a nominee without the other party's support,” says Zavieh, “we risk the nomination of more extreme candidates. The confirmation process has served to keep the Court within the confines of a relatively centrist ideological scale. This creates a real possibility of that changing.”

Did Democrats have a choice?

Before Gorsuch's confirmation, Democrats faced few, if any, good options. That a conservative justice would fill Antonin Scalia's seat became inevitable last year with Donald Trump's win.

However, many Democratic activists, believing the seat was stolen, supported taking any measure to prevent a Trump nominee from being confirmed. Constituents flooded senators' offices with calls for a filibuster.

Democrats need an energized base of voters to help the party defend 25 Senate seats in the 2018 midterm elections. Going ahead with the filibuster, even in the face of its demise, was seen by many as the only way to take a stand.

Alternatively, Democrats could have voiced objections during debate but allowed an uncontested vote. Gorsuch would have been confirmed by a simple majority, and the filibuster would have remained intact, at least in theory, to be used to block a future nominee who would change the ideological balance of the Court.

Senator McConnell was unlikely to ever let Democrats successfully filibuster a Republican Supreme Court nominee. The question was: will the filibuster be killed now or will it be killed later? Democrats seem to have come to the conclusion that a tool they could not use under threat of removal was functionally dead already.

Reactions

The end of the filibuster for Supreme Court nominees is being both mourned and cheered.

Senator John McCain (R-AZ), who voted for the change, decried the move. “It’s a bad day for democracy,” McCain said, “I think it’s a terrible mistake that we will regret for many, many years to come.”

Attorney and commentator James Goodnow also sees the move as potentially harmful. “Allowing a simple majority vote will politicize the court in an unprecedented manner,” said Goodnow. “A 60 vote requirement ensures that presidents appoint justices who can garner bipartisan support, keeping party ideologues from ascending to the bench and regularly making decisions that could divide the country.”

“We will likely now have a third branch of government that is steeped in partisan politics — ripping the country even further apart than it already is,” said Goodnow.

The Constitution makes no reference to the filibuster, and the tactic was not recognized by the first Congresses. Then, senators could invoke a “previous question” motion that would end any debate with a majority vote.

Today, the filibuster is almost exclusively procedural. If a senator has the support of more than 40 colleagues, he or she can express intent to filibuster and block legislation without the need for endless debate. In this way, the minority party can slow Senate business to a halt with little fanfare and little knowledge on the part of the public.

Removing the filibuster, some claim, moves the Senate closer to its original form.

San Diego Libertarian Party Chair, Alicia Dearn sees reason to be optimistic. “Judges,” says Dearn, “come from a particular class and training. The judges themselves believe that they are above the politics somewhat and will act that way. Any nominee who comes from a background too far afield from the traditional sources will not be taken seriously by the Senate.”

“Fringe nominees will not be confirmed so long as the Senate is closely [divided] between the parties,” she continues, “because moderates will break ranks. In my opinion, the Senate shying away from filibuster will actually make the process less political theater, which will be good for the country and its view of the judiciary.”