Policy

Gorsuch Floor Fight Foreshadows Change in Senate

Process likely to become longer, nastier and more political

Supreme Court nominee Neil Gorsuch testifies on the second day of his Senate Judiciary Committee confirmation hearings on Capitol Hill on March 21. (Tom Williams/CQ Roll Call)

Updated 4:35 p.m. | A committee vote Monday on Supreme Court nominee Neil Gorsuch will kick off a consequential weeklong confirmation showdown — one that is primed to reshape the Senate and fill the high court seat left vacant for more than a year.

The Senate Judiciary Committee meets to advance Gorsuch’s nomination to the Senate floor, with the panel’s 11-member GOP majority expected to deliver enough votes for a positive report.

Majority Leader Mitch McConnell said the full Senate would vote on Gorsuch’s nomination four days later, on Friday, April 7.

What happens in the Senate over the next several days could reverberate in future Supreme Court confirmation fights, and appears likely to make the process longer, nastier and even more political. And if Republicans stand firm as expected, the Supreme Court will have its first new justice since 2010, regain its conservative tilt, and no longer be at risk for the kind of 4-4 deadlocks that left it unable to decide controversial cases on immigration and public sector unions last year.

[Pocast: How the Senate Could Lose Its Essence Over Gorsuch]

Democrats on the committee will spend Monday’s meeting explaining the reasons they oppose Gorsuch and why they will do what they can to keep the federal appeals court judge off the high court.

Dozens of Senate Democrats have said they would do so even if it means forcing Republicans to end a long-held Senate filibuster rule that requires 60 votes to allow for a confirmation vote on high court nominees. McConnell and his fellow Republicans are likely to respond by invoking the “nuclear option” that would require only 51 votes to confirm a Supreme Court justice.

Gorsuch’s Democratic opponents include Sens. Maria Cantwell of Washington, Thomas R. Carper of Delaware and Bill Nelson of Florida, who all voted to break a filibuster on Justice Samuel A. Alito Jr., an appointee of President George W. Bush, in 2006.

“Gorsuch has … ruled against women’s rights and LGBTQ rights. He has frequently sided with employers over employees and favored corporate interests over public interests,” Cantwell said in a statement Thursday. “Many difficult issues will come before the court in the months and years ahead. We need a U.S. Supreme Court justice who will stand up for equal justice for all.”

Democrats have other concerns, including Gorsuch’s record as a federal appeals court judge; a $10 million campaign backing his confirmation in which the donors were largely unknown; his independence from the president who nominated him; and his reluctance to detail his views at the confirmation hearings.

There is also a flood of anger from the Democratic base, who consider this a stolen Supreme Court seat, since Republicans last year refused for more than eight months to hold a hearing or confirmation vote for Merrick Garland, President Barack Obama’s nominee to fill the seat of Justice Antonin Scalia. The solidly conservative justice died in February 2016.

Republicans are expected to stand firm behind President Donald Trump’s pick and indicate they are prepared to end the filibuster for high court nominees — even if they don’t directly say that. As Judiciary member Lindsey Graham of South Carolina put it during a press conference at the Supreme Court steps Thursday: “He’s going to be on the Supreme Court ’cause he’s earned the right to be there. The only question is how, it’s not even when.”

Red-state Democrats

While Democrats including Joe Manchin III of West Virginia have voiced reluctance to force Republicans to end the filibuster, it doesn’t appear to be enough to overcome the block.

Manchin and Heidi Heitkamp of North Dakota, who are up for re-election in states won by Trump, are ready to support Gorsuch on a procedural vote and for confirmation.

“He has a record as a balanced, meticulous, and well-respected jurist who understands the rule of law,” Heitkamp said Thursday in a statement.

“This vote does not diminish how disturbed I am by what Republicans did to Judge Garland,” she added. “But I was taught that two wrongs don’t make a right. There isn’t a perfect judge. Regardless of which party is in the White House, the U.S. Supreme Court should be above politics.”

Missouri Democrat Claire McCaskill, who is up for re-election next year in a state that went big for Trump last fall, announced Friday she would support a filibuster and vote “no” on Gorsuch’s confirmation: “This is a really difficult decision for me. I am not comfortable with either choice.”

Earlier, the Kansas City Star obtained a recording of McCaskill in which she could be heard saying Gorsuch was one of the better judges on the president’s list of potential picks. McCaskill also warned that blocking Gorsuch could mean a worse pick in the view of Democrats.

One of Trump’s finalists, U.S. Circuit Judge William Pryor, was described by one Slate writer as a “a bomb-throwing culture warrior and Republican politician in robes.”

“So they pick another one off the list and then they bring it over to the Senate and we say no, no, no, this one’s worse. And there’s not enough votes to confirm him. They’re not going to let us do that too long before they move it to 51 votes,” McCaskill said in the recording, in a reference to the nuclear option.

If Gorsuch is confirmed, he would likely join the court in time to participate in the final oral arguments of the year, scheduled for later in April. That includes cases on whether churches can be excluded from secular state-funded aid programs, a death penalty sentence, and debt collection.

His reception at the court might be much different than in the Senate.

“I think that the justices themselves will do everything they can to let all of that end, at the interest of the court, and they will treat him the same as if he were confirmed unanimously,” said John Elwood, a partner at Vinson & Elkins in Washington, who closely follows the Supreme Court.

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