Gorsuch Survives Nuclear Fallout

Jansen VanderMeulen '19
Executive Editor

More than a year after Justice Antonin Scalia died unexpectedly, the Senate last week confirmed Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to take Scalia’s place on the Supreme Court; he was sworn in earlier this week. Gorsuch was confirmed Friday by a vote of fifty-four to forty-five, with three Democrats joining all fifty-one present Republicans to confirm President Donald Trump’s nominee for the nation’s highest court. A day before, the Republican majority failed to overcome a Democratic filibuster of Gorsuch’s nomination, with only fifty-five of the sixty senators needed voting to move Gorsuch’s nomination forward. In response, Senate Majority Leader Mitch McConnell (R-Ky.) invoked the so-called “nuclear option,” replacing by majority vote the longstanding sixty-vote threshold for Supreme Court nominees with a simple-majority requirement.

The battle to name Scalia’s replacement has roiled the Senate and drawn cries of hypocrisy from Republicans and Democrats alike. In March of last year, then-President Barack Obama nominated Judge Merrick Garland of the D.C. Circuit Court of Appeals to take Scalia’s place, but the Republican-controlled Senate declined to act on Garland’s nomination. Shortly after Obama announced Garland as his pick, McConnell, citing Senate tradition, announced the Senate would refuse to hold hearings or a vote on any nomination made for the Supreme Court during the year of a presidential election. Democrats cried foul, noting Garland’s sterling credentials and moderate profile. They decried Republicans’ refusal to hold hearings on Garland’s nomination as a breach of Senate norms and an escalation of the judicial nomination wars that have raged in the Senate for decades. 

The nuclear option has been looming over judicial nominations for more than a decade. Invoked for lower court nominations by then-Senate Majority Leader Harry Reid (D-Nev.) in 2013 to end what Obama called a “pattern of obstruction,” the procedural change to allow simple-majority cloture for judicial nominees was floated most prominently in 2005 by Republicans frustrated with Democrats’ filibuster of several of then-President George W. Bush’s lower court nominees. That crisis was averted by the efforts of the so-called “Gang of 14,” a bipartisan group of senators that agreed to allow streamlined consideration of Bush’s nominees while keeping the sixty-vote threshold in place. This week, that agreement proved to be a temporary reprieve for the Senate’s beleaguered sixty-vote threshold. Each side blames the other for the escalation in the judicial wars. Republicans point to Democrats’ defeat of Robert Bork’s nomination to the Court in the 1980s and Reid’s invocation of the nuclear option for lower court nominees in 2013. Democrats counter by accusing Senate Republicans of an unprecedented blockade of lower court nominees during the tenures of Obama and President Bill Clinton.

Few deny that judicial nominations have become vastly more polarized along partisan lines in recent decades. Within living memory, Supreme Court nominations were relatively uncontroversial affairs. In 1986, Scalia was approved with ninety-eight senators voting aye and none voting to reject, while his ideological opposite Justice Ruth Bader Ginsburg was approved ninety-six to three just seven years later. Such margins are unimaginable today. While Chief Justice John Roberts was approved with seventy-eight votes in 2005, bipartisan support for nominees has waned recently, with Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan all receiving fewer than seventy votes despite solid credentials. Meanwhile, lower court nominees of presidents of both parties have met with increasing obstruction. Republicans declined to hold hearings for many of President Clinton’s lower court nominees in the late 1990s, while Democrats successfully filibustered several Bush nominees and delayed many others in the mid- 2000s.

No matter on whom can be laid the blame for the increasing bitterness of the battles over presidents’ nominees to fill the courts, Republicans’ decision to deploy the nuclear option works in their favor, at least in the short term. Scalia’s seat will now be filled by Gorsuch, seen by most as a reliable conservative during his time on the Tenth Circuit Court of Appeals. While Scalia was a symbol of American judicial conservatism, his devotion to originalism occasionally led him to side with the Court’s liberals on such issues as the Sixth Amendment’s Confrontation Clause and the permissibility of technologically advanced searches and seizures under the Fourth Amendment. It is unclear if Gorsuch holds similar idiosyncrasies, or if his jurisprudence will tend more toward the mold of a conventional conservative like Alito. 

Assuming Gorsuch fulfills the ideological expectations of critics and supporters alike, hisconfirmation leaves the Court in roughly the same ideological position it held before Scalia’s death: four more-or-less conservative justices, four more-or-less liberal justices, and conservative-leaning-but-swingy Justice Anthony Kennedy. Kennedy will celebrate his eighty-first birthday this summer, and Ginsburg, the ideological heart and soul of the Court’s liberal wing, just turned eighty-four. Should either Kennedy or Ginsburg retire in the next three years, the Court would be poised for a dramatic ideological shift to the right. With the sixty-vote threshold for Supreme Court nominees now a thing of the past, little would stand in the way of Trump filling either seat with another name from the list of possible justices he provided during the campaign. Any of those jurists would likely be far more conservative than Kennedy and Ginsburg. For now, the Senate’s nuclear showdown looks like a major win for Trump and Senate Republicans. But political winds shift, and no party remains in control forever. What looks like a clear-cut victory for Republicans today will likely aid Democrats one day as well. One thing is certain: the partisan battles that have politicized Supreme Court nominations show no sign of abating. Bitter though the fight over this vacancy surely was, the Senate’s decision to go nuclear means there is no reason to believe the next vacancy will prove any smoother.



1 https://www.washingtonpost.com/news/powerpost/wp/2016/03/16/republicans-refuse-to-budge-following-garland-nomination-to-supreme-court/?utm_term=.b044d23c2b45

2 http://www.myajc.com/news/national-govt--politics/senate-democrats-slam-republican-blockade-garland-visits-capitol-hill/QNSaadfG00NEgLwRI9RCtL/

3 http://www.politico.com/story/2016/08/obama-courts-judicial-legacy-226741

4   https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html?utm_term=.b3402f89cbf7

5   http://www.nbcnews.com/id/7384708/ns/politics/t/gop-eyes-nuclear-option-judges/#.WOrlPIjys2w

6   http://www.cnn.com/2005/POLITICS/05/24/filibuster.fight/

7   https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm

8 Id

9   http://www.npr.org/templates/story/story.php?storyId=4575047

10   http://www.nbcnews.com/id/7384708/ns/politics/t/gop-eyes-nuclear-option-judges/

11   http://fivethirtyeight.com/features/neil-gorsuch-supreme-court-trump/

12   http://articles.latimes.com/2011/nov/24/nation/la-na-court-scalia-20111125

13 http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/antonin_scalia_was_often_a_friend_of _criminal_defendants.html