With President Trump’s announcement that he has chosen Judge Neil Gorsuch, a judicial conservative from Colorado, to fill the empty seat on the Supreme Court, the stage is set for a confirmation drama that will play out over the next weeks and months in the Senate and in the media. Like any good drama, it will be packed with soaring soliloquies and moments of low humor.
But whether Gorsuch is ultimately confirmed or not, the story will end with one of the two major parties claiming that they have been grossly mistreated, insisting that permanent damage has been done to the structure of American democracy.
Gorsuch, a widely respected jurist who sits on the U.S. Court of Appeals for the 10th Circuit in Denver, is pro-life and pro-religious liberty. He is seen at least as conservative as the late Justice Antonin Scalia, whose seat he will fill. His confirmation will bring the court back to the same right-of-center balance that existed prior to Scalia’s death.
But Democrats have long signaled that they view the seat as “stolen” because of the extraordinary refusal of Senate Republicans to even consider former president Barack Obama’s nominee for the court, Judge Merrick Garland, a moderate who was viewed by partisans on both sides of the aisle as an exceptionally well-qualified candidate.
For almost a year, Senate Majority Leader Mitch McConnell and other senior Republicans in the chamber refused to move forward on Garland’s nomination, claiming that because the primary campaigns had already started, the next president should choose the next chief justice. But now they are calling on Democrats to quickly approve Gorsuch who had been approved unanimously by the Senate when he was appointed to the 10th Circuit.
McConnell, who tortured precedent and fact to construct an argument that Obama was not entitled to name a Supreme Court justice in his final year in office, is now arguing that because Trump is in his first term, he deserves more deference than Republicans offered Obama in his last.
“I hope members of the Senate will again show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination, just like the Senate treated the four first-term nominees of Presidents Clinton and Obama,” McConnell said.
But senior Senate Democrats are not in a forgiving mood, a fact they signaled by refusing Trump’s invitation to attend the announcement of Gorsuch’s nomination at the White House last night. Minority Leader Chuck Schumer of New York promised “exhaustive” inquiries into his record of legal decisions.
“Now more than ever, we need a Supreme Court Justice who is independent, eschews ideology, who will preserve our democracy, protect fundamental rights, and will stand up to a President who has already shown a willingness to bend the Constitution,” he said in a statement.
He added, “Given his record, I have very serious doubts about Judge Gorsuch’s ability to meet this standard. Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court.”
Some Democrats and liberal advocacy groups aren’t even waiting for hearings. In fact, they didn’t wait for a name before demanding that the party goes to war over the nomination and block Gorsuch with a filibuster.
On the right, from Trump on down, Republicans are calling on McConnell to use the “nuclear option” -- changing the Senate’s rules to allow debate on a Supreme Court nominee to be shut down by a simple majority rather than the 60-vote threshold. His predecessor, Democrat Harry Reid, used the nuclear option to confirm Obama judicial nominees obstructed by Republicans, but would not go so far as eliminating the filibuster for Supreme Court picks.
Both parties in the Senate face some tricky decisions.
To successfully filibuster Gorsuch, the Democrats would need 41 of the 48 members of their caucus to agree to block a vote on him. However, some are going to be hesitant or outright unwilling to go along. Between actual Democrats and the two Independents who caucus with them, the minority will have a combined 25 seats to defend in the 2018 election, representing more than half of their strength in the Senate. Many of those seats are in states like Pennsylvania, Michigan, Florida, and Indiana, which Trump carried in the 2016 election.
West Virginia Sen. Joe Manchin, whose state also went for Trump, has already signaled that he will not support a filibuster.
If faced with Democratic obstruction, Republicans will feel pressure to do away with the filibuster for Supreme Court judges entirely. That will be its own kind of struggle because the party was unanimous in its cries of rage and betrayal when Reid nuked it over lower court judges in 2013.
McConnell, in need of a 51-vote majority (and with Vice President Mike Pence able to weigh in and break a tie in the Republicans’ favor), cannot afford to lose more than two members of his caucus if he opts to try to force through a rule change. It’s possible, though by no means certain, that some members of the body with long memories of being in the minority, will be unwilling to strip Democrats of one of the few levers of power they control, knowing that the pendulum always swings back eventually.
Either way, this will end badly.
If Gorsuch is strong-armed onto the court, a very large segment of the Democratic base will view him as illegitimate -- the occupant of a “stolen” chair -- and will question any conservative rulings from the court that relied on his vote.
If Gorsuch has his nomination blocked, Republicans will howl about Democrats’ intransigence, and many will seek ways to further limit the power of the minority in the future, increasing pressure on any holdouts to take the more extreme position on the nuclear option in the future.
It’s very hard to see an ending to this play in which both sides emerge satisfied that their rights have been respected.