Senate Confirms Neil Gorsuch for Supreme Court
- 04/07/2017 04/07/2017 by BRITAIN EAKIN and TIM RYAN (Courthouse News)

Neil Gorsuch
– Two decades of increasing polarization over judicial nominations reached its apex Friday when the Senate voted by a simple majority mostly along party lines to confirm Neil Gorsuch as the Supreme Court’s next associate justice.

Speaking from Florida, President Donald Trump said, “Judge Gorsuch’s confirmation process was one of the most transparent and accessible in history, and his judicial temperament, exceptional intellect, unparalleled integrity, and record of independence makes him the perfect choice to serve on the Nation’s highest court.

“As a deep believer in the rule of law, Judge Gorsuch will serve the American people with distinction as he continues to faithfully and vigorously defend our Constitution,” the president said.

The White House said Gorsuch will be sworn in Monday and will participate in oral arguments with his fellow justices beginning in late April.

The Republican-controlled Senate went nuclear Thursday, killing the supermajority 60-vote threshold for Supreme Court nominees to push Gorsuch through after Democrats tried to block his confirmation.

It capped a year of partisan escalation over who would fill the late Antonin Scalia’s seat on the high court, and deepened debate over who will shoulder the most blame for the potential fallout of going nuclear.

In his floor speech before Thursday’s vote to change the rules, Senate Minority Leader Chuck Schumer warned that eliminating the 60-vote threshold for a filibuster on a Supreme Court nomination would cut out incentives for presidents to pick moderate judges so long as their party controls the Senate.

“Just as it seemed unthinkable only a few decades ago that we’d change the rules for nominees, today’s vote is a cautionary tale about how unbridled partisan escalation can ultimately overwhelm our basic inclination to work together and frustrate our efforts to pull back; blocking us from steering the ship of the Senate away from the rocks,” the New York Democrat said.

Sen. Lindsey Graham, R-S.C., had warned his colleagues on the Judiciary Committee about this in March last year when they refused to consider President Obama’s nominee Merrick Garland.

Though Graham has since blamed Democrats for the recent escalation in the fight over judicial nominations, he warned on Monday that the fallout from the rule change could be bad.

“The judges are going to become more ideological because you don’t have to reach across the aisle to get one vote any longer,” he had said.

Although hesitant to make a prediction, the Michael O. Sawyer Chair of Constitutional Law and Politics at Syracuse University Dr. Thomas Keck, said Graham could be right.

Calling the nuclear option a “really significant” escalation in the long-term intensification of partisan bickering over the court, Keck said all future justices could be confirmed with much closer party line votes.

“It’s at least possible – we don’t know how this will play out – but it’s at least possible that on both the left and the right you could wind up with more extreme justices,” he said in a phone interview.

Noting that Justice Clarence Thomas is the only current member of the high court confirmed with less than 60 votes, Keck positioned the nuclear Gorsuch vote within two decades of increasing polarization over judicial nominations.

Although both sides have escalated the fight at different times, Keck said Republicans might shoulder more responsibility.

“I think it is accurate to say that over the past generation Republicans have placed more priority on capturing and maintaining control of the courts than Democrats have,” he said. “So there have been more frequent and sharper escalations on the Republican side.”

The Syracuse professor pointed to several key moments of escalation since 1987. The first came during President Reagan’s second term when he nominated Robert Bork to fill Lewis Powell’s seat.

At the time, the court was split 5-4 on protection of abortion rights, Keck said, and Powell was a member of that majority.

The Democrats controlled the Senate at the time and had promised a fight if Reagan tried to put an ideological extremist on the court. They successfully framed Bork as an extremist, and although the Senate gave him a full a hearing, Democrats ultimately blocked his nomination.

“Certainly for conservatives of a certain generation, that was a memorable moment that has had long lasting impact,” Keck said. “They feel that Judge Bork was unfairly treated.”

Reagan ended up nominating Justice Anthony Kennedy, now 80, who is considered a moderate and the court’s ideological center. Kennedy has cast key swing votes, including several that have reaffirmed Roe v. Wade, the landmark case that legalized abortion.

The partisan struggle over court appointments then carried over into the Clinton presidency, Keck said, when Sen. Orrin Hatch and other Republicans objected to Peter Edelman’s nomination to the D.C. Circuit Court of Appeals. Clinton relented and appointed Merrick Garland instead.

That partisan fight kicked up again during the George W. Bush administration when Democrats blocked Miguel Estrada from taking a seat on the D.C. Circuit, but Keck said Bush successfully pushed through more than 100 lower court appointments.

Democrats, however, managed to stop the 10 that most concerned them.

Then came the Obama years when Republicans slowed lower court judicial confirmations to a trickle.

“I think it is accurate to say that Republicans escalated this sort of obstruction to new heights,” Keck said.

Republicans forced more cloture votes on lower court nominees during Obama’s eight years in office than all previous administrations combined, Keck said.

Republican refusal to hold votes on President Obama’s nominees to fill three vacancies on the D.C. Circuit led Senate Majority Leader Harry Reid of Nevada to invoke the nuclear option for executive and lower court judicial appointments in 2013.

The fight escalated again when Mitch McConnell, with GOP backing, refused to consider Merrick Garland’s nomination to the Supreme Court.

And so the Senate has arrived to the current iteration of the partisan escalation over judicial nominees, having nuked the 60 vote supermajority threshold for all judicial nominees.

According to Keck, how important that threshold is depends on how well the U.S. Senate is functioning.

“In some kind of hypothetical world where the Senate is a well functioning deliberative body where members are able to negotiate with one another across party lines, then I think the super majority threshold makes some sense,” he said.

A supermajority vote requires the White House to pay some attention to the views of the minority party, Keck added.

In choosing to block Gorsuch, Democrats were signaling to President Trump to negotiate with them on a more acceptable nominee, or what Keck called “the Republican version of Merrick Garland.”

While Gorsuch is younger than a typical Supreme Court nominee and widely considered “quite conservative,” President Obama had nominated someone widely regarded as a moderate and older than a typical Supreme Court nominee, which he called “a compromise in and of itself.”

“That’s how the super majority rule is supposed to work,” Keck said “but it seems like the Senate is not functioning like that at the moment.”

“If all cross party negotiation has completely broken down, then the 60 vote threshold, its’ hard to make it work,” he added.

How going nuclear will impact the Senate going forward remains unclear.

After Thursday’s vote to officially change the rules in the Senate to require only a simple majority vote to end a filibuster on nominations to the Supreme Court, senators were mixed on what the change would mean for their institution.

Some, like Senate Minority Leader Chuck Schumer, warned that invoking the nuclear option would “irrevocably” move the Senate from the careful, deliberative chamber the founders meant it to be.

“The cooling saucer of the Senate will get considerably hotter,” Schumer said on the Senate floor before the decisive vote on Thursday.

The statement evoked the perhaps apocryphal metaphor George Washington used to explain to Thomas Jefferson the need for two legislative chambers. The Senate, Washington apparently said, would temper extreme legislation sent to it from the House, just as people would pour coffee into a saucer to cool it before drinking.

But other lawmakers were more optimistic about how the Senate would respond to the nuclear option being invoked for Supreme Court nominees.

“I really don’t think that anything has changed,” Sen. Ron Wyden, D-Ore., told reporters Thursday.

Wyden said he hopes the unprecedented move serves as a wake-up call for Washington that working on a strictly partisan basis is not a viable governing option. Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee was similarly optimistic about the potential impacts of going nuclear.

“We’ve been through hard times before, and there’s something in the Senate that eventually draws people together,” Feinstein told reporters Thursday. “Because we basically want to get things done, and that’s true on both sides. And so I think that natural – it’s not an urge, it’s the reason that we’re in this – comes forward.”

Sen. Ted Cruz, R-Texas, said the pressures that spurred Republicans to invoke the nuclear option, which he blamed on Democrats bowing to liberal special interests and the “far-left,” will do more damage long-term to the Senate than the measure Republicans passed Thursday ever would.

“The radical left is demanding of Democrats they obstruct everything,” Cruz said. “That is not good for the Senate, it’s not good for the country and I think in time it’s not going to be good for the Democratic party either.”

Instead of how lowering the threshold for Supreme Court filibusters will impact day-to-day work in the Senate, lawmakers were interested in the wake of the vote about what going nuclear would mean for the legislative filibuster, a tool seen as critical to preserving the minority party rights unique to the Senate.

Senate Majority Leader Mitch McConnell on Tuesday promised not to eliminate the filibuster for legislation, saying unlike filibusters for executive nominations, which are a relatively new concept, the legislative filibuster is “what makes the Senate the Senate.”

“There’s not a single senator in the majority who thinks we ought to change the legislative filibuster,” McConnell said Tuesday. “Not one.”

Wyden said he would take McConnell at his word that he would not move to eliminate the filibuster for legislation.
But Cruz seemed to hint McConnell’s confidence that nobody in his caucus supports the drastic measure might be misplaced, saying he would “wait and see how the facts develop” when asked if he supported keeping the filibuster in place.

“At this point there is not a majority for ending the legislative filibuster,” Cruz told reporters Thursday. “My hope is that Democrats will stop their unreasonable across the board obstruction and allow the Senate to operate.”

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