President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court Tuesday night, in his bid to fill the slot vacated by Justice Antonin Scalia’s death last year. But before Gorsuch can take a seat on the high court, he will have to clear the Senate, where a bevy of Democrats have already said they will fight his nomination.
Gorsuch, despite his Ivy League credentials and conventional background, may face a particularly fractious confirmation process in part because of what happened to previous nominee Merrick Garland, who former President Barack Obama selected in March but whose nomination Senate Republicans refused to consider through the presidential election.
So how does a Supreme Court nominee typically get confirmed? The process’ broad outlines can be found in the Constitution’s Appointments Clause, which calls for the president to, “with the Advice and Consent of the Senate, ... appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”
In practice, the “advice and consent” of the upper chamber is delivered through confirmation hearings, in which the nominee appears before the Senate Judiciary Committee for a hearing and members vote up or down on whether to recommend the judge to the full chamber.
Even if the committee votes no, the full Senate then meets to debate the nomination, after which a nominee would technically need 51 votes — a simple majority — to be confirmed. But Senate rules also allow for a senator to start a filibuster, which would then require 60 votes to overcome and consequently confirm the nominee.
Democrats, led by Sen. Jeff Merkley of Oregon, said before Gorsuch’s nomination that they would use the filibuster. Democrats currently hold 46 seats in the Senate and two independents, including Vermont Sen. Bernie Sanders, usually caucus with them.
Senate Republicans could technically vote to remove the ability to filibuster a Supreme Court nominee with their 52-seat majority. Democrats did something similar in 2013 to abolish that move for most other presidential appointments. But the option to filibuster still exists for nominees to the nation’s highest court, and it is unclear if Senate Republicans would all agree to back the “nuclear option,” as it is so called, to circumvent a united Democratic bloc.
Sen. Ted Cruz of Texas said ahead of Gorsuch’s nomination Tuesday that “all procedural options are on the table” in pushing a conservative nominee through the Senate — implying the nuclear option should be considered. “The Democrats are not going to succeed in filibustering the Supreme Court nominee,” he told Politico.
Even if Gorsuch is confirmed, he may have to wait. According to the Congressional Research Service, the timeline from nomination to confirmation has averaged about 67 days among all nominees since 1975. Garland, whose nomination never made its way to a committee hearing, was left waiting for 10 months.
With their own nominee’s failed confirmation in mind, Democrats have vowed to obstruct Gorsuch’s path to the Supreme Court as well. Merkley described the vacancy as a “stolen seat” from Garland Monday, and Senate Minority Leader Chuck Schumer, D-NY, said before Gorsuch’s selection that his party members were willing to keep Scalia’s seat open indefinitely.
“I’m hopeful that maybe President Trump would nominate someone who is mainstream and could get bipartisan support. We shall see,” Schumer told CNN’s Jake Tapper. “But if they don’t, yes, we’ll fight it tooth and nail. As long as we have to.”