Supreme Court Vacancy
President Donald Trump has announced Neil Gorsuch as his Supreme Court nominee. Gorsuch, of the 10th Circuit Court of Appeals, would fill the Supreme Court vacancy left by the late Justice Antonin Scalia, the 1986 Ronald Reagan appointee who died last February after serving just months shy of 30 years on the high court.
Just hours after Scalia’s death, Senate Majority Leader Mitch McConnell declared that the Senate should not confirm a replacement until after the 2016 presidential election, a swift statement which represented a historic rebuke of then-President Obama’s executive authority. While Democrats argued that it is the president’s constitutional right to nominate a Supreme Court Justice, Republicans argued that the American people should have a voice in the consequential determination through the vehicle of the election.
The following month, President Obama nominated D.C. federal appeals court judge Merrick Garland to fill the Supreme Court vacancy. Obama applauded the 63-year old Garland’s long and distinguished commitment to public service and sold him as a judicial centrist. In bypassing more progressive choices, Obama settled on a nominee who had previously been viewed amenably by many in the GOP, including Utah Senator Orrin Hatch, who pushed for Garland to fill the 2010 vacancy as a no-question, consensus nominee. Obama urged for the Senate to give Garland a fair hearing, adding that if it didn’t, “the reputation of the Supreme Court will inevitably suffer. Faith in our justice system will inevitably suffer. Our democracy will ultimately suffer.” Hatch responded to Obama’s nomination by saying, “I think highly of Judge Garland. But his nomination doesn’t in any way change the current circumstances,” referencing the toxic presidential election.
Merrick Garland never received a confirmation hearing, officially becoming a no-action Supreme Court nominee. His record long 293 day nomination expired in early January with the conclusion of the 114th Congress, and he has since returned to his previous lower court bench. In ignoring Garland’s nomination, Republicans established a compelling argument for traditional conservatives, particularly those troubled in any way by Donald Trump, to support his candidacy and to view the 2016 election as the mechanism to break the tied conservative-liberal stalemate in the Supreme Court.
But at the same time, the Republican gambit was also a gamble as Hillary Clinton never pledged as a candidate to re-nominate Merrick Garland. Had she won the November election, she would have been pressured by progressives to nominate someone younger, more diverse and more liberal than the more ideologically moderate Garland. That prospect could have encouraged the Republican Senate to push for a Garland confirmation in the congressional lame-duck session as opposed to facing a more objectionable Clinton nomination, or to further extend the blockage into her presidency. Now with a 2016 elected Republican President and majority Congress, the GOP believes it has the rightful mandate to re-establish a Republican appointee majority in the Supreme Court.
But now in role reversals, Senate Democrats are vowing to fight against the Republican President’s nomination. Prior to Trump’s nomination, Senate Minority Leader Chuck Schumer vowed to fight “tooth and nail”, that “if the nominee is not bipartisan and mainstream, we absolutely will keep the seat open.” Schumer added that the Senate must insist on a 60 vote supermajority, a bar met by both of Obama’s successful nominations, for Gorsuch to prove himself within the legal mainstream, a threshold required to overcome a filibuster.
Some Senate Democrats, including Oregon Senator Jeff Merkley, who views the prolonged vacancy as an unjustly stolen seat, has vowed to mount a filibuster. In the event of a filibuster, McConnell would need to add eight Senators to the current Republican tally of 52 in order to form the supermajority needed to invoke cloture. In order to do so, some conservative groups like the Judicial Crisis Network, which is willing to spend $10 million to ensure Gorsuch’s nomination, will undergo an ad campaign to target vulnerable Senate Democrats up for re-election in 2018, principally those in red states, to pressure them to decide between risking their Senate seats and an obstructionist agenda. The campaign would presumably focus initially on the quintet of red-state Democrats up for re-election next year in North Dakota, West Virginia, Missouri, Indiana and Montana, and then work to identify additional institutionalist senators and those otherwise opposed to resistance. At the same time, these senators will feel the acute pressure from democratic voters who will demand a unified and strong opposition to combat the perceived usurpation of the Supreme Court seat.
If Senate Republicans are unable to obtain the votes to overcome a filibuster, there is a more extreme option which could be taken to ensure Gorsuch’s nomination. Republicans could unilaterally change the rules of the Senate by destroying the filibuster for Supreme Court nominations, invoking the so-called nuclear option. President Trump has urged Senate Republicans to do so in the event of robust democratic resistance, but McConnell has not yet embraced the option. Going nuclear would minimize the requisite voting standard to a simple majority of 51. McConnell has instead insisted that Schumer refrain from requiring the filibuster-threshold standard of 60 votes.
Given the neglected treatment of Merrick Garland’s nomination and the overall hyper partisanship, the second nomination for Justice Scalia’s vacant seat was predestined for contention. Now that the nomination has officially been made, a months-long fight in Washington should be expected.
