A Vacancy on the Court
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The Nomination of Neil Gorsuch

The Vacancy

The death of Antonin Scalia on February 13, 2016, left a vacancy on the Court that is poised to become the longest since the Court settled in at nine justices in the late 1860s. On March 12, it will eclipse the 391 days of Abe Fortas's vacancy back in 1969-70. Not surprisingly, the Republican Senate refused to consider President's Obama's nominee, and their gamble paid off with the election of Donald Trump. Replacing a conservative with a conservative will have little immediate impact on the Court, but it does refresh that seat for the conservative bloc, assuming the new justice does not surprise. One 4-4 decision of the Scalia-less Court that could be affected involved leaving in place a lower court decision that public employees choosing not to join the union for their place of employment may be required to pay fees for the collective bargaining component of the union's activities. Rehashing that case will almost surely go against the union (Friedrichs v. California Teachers Association, 2016).

The Setting

With both the presidency and the Senate in Republican hands, President Trump should be able to get virtually any nominee through the process. Replacing one of the more conservative justices on the Court means that the stakes are relatively low for the Democrats. Nominations, however, became somewhat more acrimonious during the Obama administration. Republicans ramped up their opposition to relatively harmless nominees who did not produce any change in the balance on the Court nor seem lacking in qualifications to serve. With the Republican snub of Obama's nominee to fill this vacancy, some Democrats have suggested they will retaliate, thus doing what senators do best--engaging in the same behavior they have previously criticized the opposition for doing. See the Nomination Setting page for more detail on the setting.

It remains to be seen what level of opposition the Democrats will launch. Some might reason that turning down Gorsuch might bring forward the nomination of Thomas Hardiman, presumably Trump's second choice and perceived as being somewhat less conservative than Gorsuch. It's unlikely any Republicans will bolt, so the Democrats will have to fillibuster to defeat the nomination, a vote to end debate requiring a three-fifths approval. This possibility has the Republican leadership talking about the "nuclear option," which would effectively eliminate the fillibuster option and permit confirmation by a simple majority vote. See The Senate page for an explanation of this scenario.

The Nominee

Neil Gorsuch (born August 29, 1967), a judge on the Tenth Circuit Court of Appeals, is President Trump’s choice to fill the Scalia vacancy. Attending Columbia University for his undergraduate work, Gorsuch completed his law degree at Harvard University in 1991. Recipient of a Marshall Scholarship, Gorsuch obtained a D.Phil. from the University College at Oxford University in 2004. He was shared as a clerk on the Supreme Court by Justices White and Kennedy in the 1993 term. Appointed by President George W. Bush in 2010 to the Tenth Circuit (CO, KS, NM, UT, & WY), Gorsuch was confirmed by a voice vote in the Senate. Gorsuch's biographical information can be found in any number of media sources, including Wikipedia: The Free Encyclopedia.

Of immediate interest may be that Gorsuch is often described as very similar to Scalia in terms of his jurisprudence and his interpretive paradigms, emphasizing original intent for the constitution and textualism for both constitutional and statutory interpretation. He is distintly a conservative and could be anticipated to have a strong affinity with Justice Alito and Justice Thomas. Analyses of Gorsuch's record will come forward over the next month. For assessments prior to his nomination, see

The Interim

The interim period is that time between the nomination and the vote in the Senate. It encompasses public reaction to the nomination, the activities of advocacy groups, press coverage, as well as the Senate Judiciary Committee hearing and subsequent committee activity. Use the links on the left to inform yourself about these various aspects of the process.

What happens next for the nominee is a number of visitations to Senate leaders and members of the Senate Judiciary Committee. Simultaneously, the Judiciary Committee have the nominee complete a comprehensive questionnaire, and each senator on the committee will either assign a staff member to compile an independent file on the nominee or agree to work together with another one or more other senators to gather information in preparation for the hearing. A background check by the FBI is also standard procedure for such nominations.

The confirmation hearing began on March 20, and the traditional role playing ensued. Republican senators were positive partisans, praising the candidate's qualifications and lobbing softballs permitting Gorsuch to look good in his responses. (Click on the Senate Judiciary Committee link to read up on role playing in the hearings.) Democrats were generally negative partisans, validators, or evaluators, seeking to draw Gorsuch out on his views regarding major constitutional issues and show the negative side of this candidate who sought to come across as an affable, knowledegeable, and unbiased reader of legal text.

The textualism that Gorsuch professes concerns Democrats. Gorsuch asserts (and probably really believes) that his reading of text is bias-free, neither conservative nor liberal. But it's not, and his reading in a case involving the Individuals with Disabilities in Education Act resulted in a rather awkward moment in the hearing. On a day of his testifying, the Supreme Court overruled a Tenth Circuit Court decision and Gorsuch's opinion regarding how the text of the law and of an earlier Supreme Court case should be interpreted. Gorsuch's reading of text seems consistently to favor business over the individual even with laws and agency rules meant to protect the individual.

As expected, the Judiciary Committee voted to confirm the nomination along strictly partisan lines, an 11-9 vote. The recommendation forwards to the full Senate and Gorsuch will be approved there with all Republicans voting in favor along with a very few Democrats, all from states that voted for Trump in the 2016 election.

The Senate

On April 7, 2017, the Senate confirmed the nomination of Gorsuch by a 54-45 vote. Only three Democrats, all from states carried by Trump in the 2016 election, voted to confirm. One Republican senator did not vote. Otherwise all Republicans voted to confirm. The vote occurred after the implementation of the nuclear option in response to a Democratic filibuster. The cloture vote failed by a 55-45 vote, 60 being needed to close debate. At that point, a parliamentary point of order (the nuclear option) that would permit the filibuster to remain in place for Supreme Court nominations was defeated on a straight-line partisan vote, 52-48. The deed was done and the subsequent vote to end debate was passed 55-45, leading to the subsequent confirmation vote.

The Democrats were in a no-win situation. No Republicans had indicated they would vote against Gorsuch. Majority Leader McConnell strongly indicated he would meet any filibuster by the Democrats with the nuclear option (See The Senate page), eliminating the filibuster for Supreme Court nominees. If the Democrats did't filibuster, they would gain little because the Republicans would simply employ the nuclear option with the next nomination. On the other hand, if the next nominee were to replace a justice from the liberal bloc or swing justice Kennedy, the Democrats might have some hope of gaining three Republican votes against cloture or against too conservative a nominee. If there was nothing to gain from a filibuster of Gorsuch, perhaps it was best to try for an agreement with the Republicans that they would not filibuster Gorsuch if the Republicans agreed to leave the filibuster in place for the next nomination, whoever it may be. The Republicans would likely not agree, though, and in fact did not agree.

A lot of blaming and rhetorical gamesmanship surround such actions. The Republican effort to blame the Democrats with the argument that no Supreme Court nomination has ever been subject to a partisan fillibuster was disingenuous. The nomination of Abe Fortas by President Lyndon Johnson to be Chief Justice was successfully filibustered by Senate conservatives, mostly Republicans but with Southern Democratic conservatives joining in. Ideology was less aligned with political party in 1968, so in a narrow definition of partisan as being only members of one party, one might claim this was not a partisan filibuster, but the conservative group that was a coalition for that day, is now firmly embedded in the Republican party today.

Whether a filibuster should be permitted for Supreme Court nominees was independent from whether it should be permitted for federal judges and other presidential nominations. It was also independent from whether the failure to consider Obama's nomination of Garland was the equivalent of a filibuster. Perhaps neither should have happened, but they stood as independent political events. So too did removing the filibuster as an option for Supreme Court nominees. Permitting a filibuster to exist in name only because you will override it if used is no filibuster at all. If a super majority is needed for any appointments by the president, surely Supreme Court justice stands as the single most important position to which it should apply. The path is now a little easier for the nomination of individuals who fall outside the mainstream of constitutional jurisprudence and interpretation.



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Updated on April 6, 2017, by George Watson