Absent a thunderbolt from the blue, the Senate Judiciary Committee on Monday will likely vote 11-9 along party lines to approve Judge Neil Gorsuch for a Supreme Court seat kept open last year by Republican hardball.
Then comes the real storm, as unified Senate Republicans, joined by some red-state Democrats, push to confirm Gorsuch by the end of the week. One way or another, they seem likely to succeed, with consequences both predictable and unforeseen.
Gorsuch’s confirmation would be a much-needed victory for the Trump administration, which has stumbled elsewhere. It would restore the slim conservative majority to a high court that’s periodically deadlocked 4-4 since the February 2016 death of Justice Antonin Scalia. And it could happen with a significant, long-lasting change in how the Senate does business.
“I don’t know if I’ll ever play the game the same,” said Sen. Lindsey Graham, R-S.C.
Like all 51 other Senate Republicans, Graham supports Gorsuch. Unlike most, he voted for both of President Barack Obama’s successful Supreme Court nominees, Sonia Sotomayor and Elena Kagan. He’s participated in past judicial confirmation compromises designed to retain Senate traditions including the filibuster.
I didn’t vote for Trump, but he won, and he deserves the same respect Obama got.
Sen. Lindsey Graham, R-S.C.
Now, facing a threatened Democratic filibuster that would effectively raise the threshold for Gorsuch’s confirmation to 60 votes instead of 51, Graham is prepared to join in the so-called “nuclear option.” This would allow Republicans acting on their own to revise Senate rules and prohibit filibusters on Supreme Court nominees.
The rules change would secure the Supreme Court seat for Gorsuch, much as an earlier rule change imposed by Democrats when they ran the Senate in 2013 enabled Obama to place three of his picks on the powerful U.S. Court of Appeals for the District of Columbia Circuit. The changes, though, would spur long-term effects as well as short-term victories.
“It means judges will become more ideological, because you don’t need to reach across the aisle to get somebody to convert, so the left and the right will have more say about judges,” Graham said, “and it’s going to affect the (Senate), because every contested (Senate) seat is going to become a referendum on the Supreme Court.”
A 49-year-old Colorado native, educated at Columbia, Harvard Law School and Oxford, Gorsuch has served since 2006 on the Denver-based 10th U.S. Circuit Court of Appeals. He casts himself as a conservative in the mold of Scalia, ever faithful to the black-and-white text of a statute or the Constitution.
“Justice Scalia was a mentor,” Gorsuch said. “He reminded us that words matter, that the judge’s job is to follow the words that are in the law, not replace them with words that aren’t.”
At the same time, Gorsuch noted that he’s been part of a unanimous panel in 97 percent of the approximately 2,700 cases he’s helped decide; 99 percent of the time, he said, he’s been in the majority. While Senate Judiciary Committee Democrats complained that he remained bland and noncommittal during his confirmation hearings, they failed to unsettle him during some 21 hours of testimony that stretched over two days, or in the follow-up written questions that, when answered, spanned an additional 76 pages.
“What worries me is you have been very much able to avoid any specificity like no one I have ever seen before. And maybe that’s a virtue. I don’t know,” Sen. Dianne Feinstein of California, the Judiciary Committee’s senior Democrat, told Gorsuch. “But for us on this side, knowing where you stand on major questions of the day is really important.”
During his decade as an appellate judge, Gorsuch has not had to rule directly on some heated issues such as affirmative action, gun rights or abortion rights. On some of these issues, activists from both sides instead infer his views based on indirect evidence. Gorsuch, for instance, sided with the company Hobby Lobby in its religious-based objection to providing contraception under Obamacare.
“No doubt, the (owners’) religious convictions are contestable,” Gorsuch wrote in a 2013 concurring opinion to a 10th Circuit decision later upheld by the Supreme Court. “Some may even find the beliefs offensive. But no one disputes that they are sincerely held religious beliefs.”
Underscoring the hard lines being drawn by the base constituencies of both parties, NARAL Pro-Choice America announced Friday that it would not endorse anyone who supports Gorsuch.
The key to how Gorsuch’s confirmation unfolds from here comes down to whether Republicans can peel off eight Democrats to break the filibuster led by Senate Minority Leader Chuck Schumer of New York. If they can, the unlimited debate enabled by the filibuster will end and an up-or-down vote will occur in which Gorsuch needs only a majority to prevail.
Two Democrats from states won handily by President Donald Trump last November, Sen. Joe Manchin of West Virginia and Sen. Heidi Heitkamp of North Dakota, have already announced their intentions to support Gorsuch. Trump won West Virginia by 68-26 percent, and he won North Dakota by 63-27 percent; both senators face re-election next year.
“Senators have a constitutional obligation to advise and consent on a nominee to fill this Supreme Court vacancy and, simply put, we have a responsibility to do our jobs as elected officials,” Manchin said.
But on Friday, the Gorsuch forces lost Sen. Claire McCaskill, D-Mo., who said she would oppose Gorsuch. She also faces re-election next year, as does another red-state Democrat, Sen. Bill Nelson of Florida, who has likewise said he will vote against the nomination
“The judge has consistently sided with corporations over employees, as in the case of a freezing truck driver who, contrary to common sense, Judge Gorsuch would have allowed to be fired for abandoning his disabled rig during extreme weather conditions,” Nelson said.
Senate Majority Leader Mitch McConnell, R-Ky., who blocked consideration last year of Obama’s nominee, Judge Merrick Garland, has already made clear that he will take whatever steps he deems necessary to promote Gorsuch to the high court.
“If we end up with that gridlock, I would say, if you can, Mitch, go nuclear,” Trump said in February.