By Erin Oh, NYU Florence Student
On April 10, 2017, Neil M. Gorsuch was officially sworn in to the United States Supreme Court after the Senate voted 54-45 last Friday in favor of the judge, effectively filling the seat left vacant for over a year since the death of Associate Justice Antonin Scalia. Neil Gorsuch was nominated by President Trump just days after his inauguration, and the successful confirmation of Trump’s pick is the deliverance of a campaign promise to replace the late Justice Antonin Scalia with another conservative legal mind. The road to confirming President Trump’s nominee was marked by a high-stakes partisan showdown in the Senate that further politicized the Supreme Court.
Justice Neil Gorsuch, 49, is now the youngest sitting member of the Supreme Court. He is a graduate of Harvard Law School who served on the Tenth Circuit Court of Appeals since 2006 when he was appointed by George W. Bush. Gorsuch brings forth a distinguished career as a federal appellate judge with over a decade of experience as well as deeply conservative views, which is expected to shift the Supreme Court back to a 5-4 conservative majority. Considered highly qualified by his colleagues, the recently confirmed justice was evaluated by the American Bar Association and awarded the group’s “well-qualified” and highest rating based on “judicial temperament, competence and integrity.” Like Scalia, Gorsuch considers himself an originalist, one who interprets the Constitution from the perspective of the original authors and when it was written.
The confirmation process is notorious for how demanding and arduous it is. Prior to the Senate Judiciary Committee’s hearings, senators investigate and comb through the nominee’s past and meet with the nominee in courtesy one-on-one meetings. The nominee also completes an “extensive questionnaire” prepared by the top Republican and Democrat on the Judiciary Committee, participates in hours of opening statements and questioning, and testifies in front of Senators and the American people about his/her judicial philosophy and stance on key issues like abortion, national security, and gun rights.
Confirmation hearings are a golden opportunity for lawmakers and the public to gain a clearer understanding of the nominee and to test the his/her influence before potentially serving on the high court for life. If confirmed and sworn in, the nominee becomes insulated from public opinion, wielding the authority to rule on landmark court cases and “invalidate legislation or executive actions which conflict with the Constitution.”
Hearings for Neil Gorsuch were conducted by the Judiciary Committee over the course of four days, where eleven Senate Republicans and nine Senate Democrats cross-examined Gorsuch about his qualifications and merits, past judicial rulings, opinions on previous Supreme Court decisions, and views on issues like abortion and campaign finance laws. Democrats and Republicans appeared to be divided over the nominee with Republican senators lauding Gorsuch and Democrats questioning his “conservative record and pro-business rulings.” Senator Lindsey Graham (R-SC) described Gorsuch as “one of the finest men to ever serve on the bench in the history of this country,” and Senator Richard Durbin (D-IL) pressed Gorsuch on Hobby Lobby Stores, Inc. v. Sebelius, concerned about the “lengths the court went to protecting the religious beliefs of the corporation and its wealthy owners, and how little attention was paid to the employees.” Gorsuch ruled in favor of Hobby Lobby, the company that “opposed parts of the Affordable Care Act that compelled coverage of contraception” due to the religious beliefs of the company’s owners (Wang).
Despite repeated probing from both parties regarding his opinions on past Supreme Court rulings, Gorsuch was careful not to divulge his current views on hot button issues that could come up during his tenure as an Associate Justice. He expressed opposition to discussing anything that would hint or suggest how he’d rule on the Court, stating “It would be grossly improper of a judge to do that.” While that statement demonstrates judicial prudence and an unwillingness to appear biased, Senator Dianne Feinstein (D-CA) viewed his lack of “specificity” as worrisome as “knowing where [Gorsuch stands] on major questions of the day is really important.”
In the end, Judge Gorsuch conveyed his staunch commitment to the role of a Supreme Court justice, asserting “I will do all in my power to be a faithful servant of the Constitution and laws of this great nation.” The Senate Judiciary Committee approved the nomination of Neil Gorsuch in a party-line vote (11-9), with all Republican senators voting for the judge to receive full consideration by the Senate.
The Senate Vote
Both parties in the Senate escalated a bitter partisan battle over the confirmation of Neil Gorsuch that led to Democrats filibustering and denying Republicans the 60 votes needed to break the filibuster and advance to a final vote. Republicans responded to Democrats by invoking the “nuclear option” which allowed the GOP to reduce the vote requirement to overcome filibusters with a simple majority of 51 votes. The rule change therefore ensured Gorsuch’s confirmation as Republicans hold a 52-48 majority in the Senate, and the final vote to confirm was 54-45 with 51 Republicans and three Democrats voting for Gorsuch. The Democrats who sided with the GOP–Senator Heidi Heitkamp of North Dakota, Senator Joe Manchin III of West Virginia, and Senator Joe Donnelly of Indiana–are all up for reelection next year in states where President Trump won by a sizeable margin. Two Independents, Senator Angus King (ME) and Senator Bernie Sanders (VT), who caucus with Democrats voted against Gorsuch.
This move by Republicans changes the future of Supreme Court confirmations. Two Democrats, Senator Charles Schumer of New York and Senator Chris Murphy of Connecticut, warned the possibility that less mainstream Supreme Court nominees may be confirmed in the future. The 60-vote requirement which Republicans voted to change and lower “acted as a guardrail against judicial extremism” and was in place to encourage the elevation of “centrist, moderate nominees” who could earn 60 votes from the Senate through bipartisanship, deliberation, and compromise. Since 1970, all but two Supreme Court nominees received confirmation from the Senate with more than 60 votes; Justice Clarence Thomas and Justice Samuel Alito were confirmed with 52 and 58 votes, respectively. This change “essentially allows the majority party to clear future Supreme Court nominees with ease,” which in turn may deepen the partisan divide and enable presidents to select more extreme nominees. In the end, Republicans rejected the Senate’s “traditional role…as the slower, more deliberative chamber” and used their majority to their advantage in order to pave the way for Gorsuch to sit on the high court.
Given the tense political climate of the U.S. Senate and the highly unpopular president who nominated him, Gorsuch garnered much criticism and scrutiny throughout the confirmation process, mainly from Democrats who have not forgotten that Republicans refused to consider former President Barack Obama’s Supreme Court nominee, Judge Merrick Garland. Republicans blocked Obama’s nominee from receiving a confirmation hearing due to a “principle” that Supreme Court vacancies are not to be filled during presidential elections. However, six justices were nominated (five were nominated and confirmed) in past presidential election years according to this graphic shared by Congressman Mike Honda. The filibuster waged by Democrats against Gorsuch was partly in response to Republicans’ lack of consideration for Obama’s nominee.
I agree with Senator Orrin Hatch (R-UT) who once said during confirmation hearings that “Something is seriously wrong when the confirmation process for a Supreme Court justice resembles an election campaign for political office.” What I believe he was referencing is the political tit-for-tat Republicans and Democrats both engaged in. Since Republicans refused to consider Merrick Garland, Democrats opposed the confirmation of Gorsuch. When Democrats waged a filibuster to oppose Gorsuch, Republicans launched the “nuclear option” to get rid of the filibuster. Members of both parties clashed with each other, and this confirmation process was clear evidence of increasing partisanship in the Senate.
While I am still uncertain about the extent of Gorsuch’s judicial conservatism given the lack of transparency regarding his ideology, he will surely be an important vote on upcoming cases involving religious freedom, gun rights, and President Trump’s Muslim travel ban. Previous Supreme Court cases which resulted in a tie among the eight justices prior to Gorsuch’s confirmation “may be reheard now that there is a ninth justice in place to break the tie.”
Trump may be able to tout the successful confirmation and appointment of his nominee within the first 100 days of his inaugural year as a victory for his administration, however, it would be an understatement to describe the current state of affairs in our legislative and executive branches as chaotic. Now that all nine seats on the Supreme Court bench are occupied, it is time for our judicial branch to check the powers and actions of President Trump and act independently of The White House, and the politics and partisanship of Congress.