February 2, 2017
SCOTUS: The Confirmation Process Is Likely to Be Long and Contentious… But Likely to Lead to A New Justice
Two of Prime’s experts consider the path to confirmation for Judge Gorsuch.
The Republican View
With President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, the Senate Judiciary Committee will become the center of what has become a periodic political circus. Consider: when President John F. Kennedy nominated Byron White to the Supreme Court in 1962, for whom Judge Gorsuch clerked, the Senate confirmed him by voice vote, a mere eight days later, after perfunctory review by the Senate Judiciary Committee. And this was at a time when it took 67 votes to invoke cloture, which was not then a consideration in the process.
Judge Gorsuch, by contrast, can expect to wait several weeks before his hearing, and submit a lengthy questionnaire to the Committee. His entire public and private life will be scrutinized, in detail, by Committee staffers, interest groups, and the news media. When he does appear before the Committee, he will likely be subjected to two full days of questioning by Committee Members, in 30 minute rounds, and in front of numerous television cameras. His testimony will be followed by as many as two days of testimony from third party witnesses, ranging from the American Bar Association, to scholars and interest groups from across the political spectrum. Millions of dollars will be spent by supporters and opponents of the nominee in a campaign style effort, including paid advertising. Indeed, when the Judge was nominated on the evening of January 31, demonstrators had already gathered at the Supreme Court, waiting to protest whoever President Trump was about to name. Within hours, some Senate Democrats indicated their opposition to the nominee, including the likelihood of a filibuster, before the confirmation process had even begun.
In part, this highly politicized, campaign-like atmosphere reflects the increasingly central role the Supreme Court has played on many matters of importance to so many Americans, removing the locus of decision-making authority on hot-button issues from the people through their elected representatives to the Judicial Branch. In part, the atmosphere reflects the increased involvement of third party interest groups across the political spectrum in the confirmation process, pressuring Senators to impose litmus tests on nominees in derogation of the independence a Supreme Court Justice should be accorded. In part, the circus-like atmosphere reflects the ubiquitous presence of television cameras and reporters from all sectors of the news media, always a draw for elected officials.
In 2013, the majority Senate Democrats, acting on their concern about the pace of the confirmation process for President Obama’s nominees, eliminated the need for 60 votes to advance confirmation votes, except in the case of Supreme Court nominees. That change, which in turn angered Senate Republicans in the continuing spiral of discord over the nomination process, now benefits a Republican President. It is likely that enough Democrats will vote to invoke cloture on the Gorsuch nomination, in anticipation of the need to save their all-out effort to block a subsequent Trump nominee who would replace a member of the Court’s liberal wing. But if the Democrats successfully deny Republicans the votes to invoke cloture on Judge Gorsuch, there will be enormous pressure on Senate Republicans to change Senate rules to remove the super-majority requirement for Supreme Court nominations.
All of the sound and fury over this nomination should not obscure an important factor: business before the Senate Judiciary Committee, other than the processing of this nomination and those to the Department of Justice, will very soon slow and then come to a virtual halt as the hearing and markup dates approach. This is not due to the lack of bandwidth in the Committee on either side of the aisle, but to the sheer volume of work that needs to be undertaken when someone is nominated to the Supreme Court.
The Democratic View
This fight won’t be about Democrats stopping the Gorsuch nomination. It will be all about Democrats demonstrating that they have extracted as much flesh as possible for the denial of the Garland nomination last year. The resentment is still extremely raw. But to what end do Democrats fight? If this nomination is denied, they won’t likely vote, or not vote, to keep the seat open for two years.
Republicans will get Gorsuch confirmed, most likely by getting the 60 votes for cloture under the current precedent, but possibly requiring the majority to invoke the nuclear option. The last time a Democratic minority faced a conservative Supreme Court nominee, Samuel Alito in 2006, 18 of them broke ranks to support cloture on the nomination. On the actual confirmation vote, only four Democrats voted aye but the nomination was a foregone conclusion with a solid Republican majority of 54 votes. There are enough Democratic institutionalists – those who believe the President should get an up-or-down vote on his nominee, as long as there are not serious disqualifying factors such as legal or ethical issues – that they will likely swallow their resentment over the Garland treatment and give the nominee an up-or-down vote, even if their final vote is down. This is especially likely given the 2018 election cycle and the concerns of Red State Democrats who aren’t in cycle. They will do what they have to do to survive politically and Leader Schumer understands that. One other consideration is the long game: do Democrats go to the mat now and dare Republicans to use the nuclear option on a conservative judge replacing a conservative judge or do they wait to force the majority’s hand in the case of a Ginsburg or Kennedy replacement?
But if the dynamics of the nomination process somehow evolve to the point that eight Democrats can’t be found for cloture, I think the Republicans play hardball and invoke the nuclear option. This would put Gorsuch on the Court but wouldn’t be all downside for Democrats. It would certainly energize the Democratic base even further. And the Senate version of the Golden Rule now is that if the majority takes away your rights, the pendulum swings quickly and soon enough you may be in the majority and enjoy denying the minority those same rights. That has happened in the aftermath of Senator Reid’s 2013 exercise of the nuclear option for Obama’s non-Supreme Court nominees. What goes around, comes around, and you need to be prepared to live with the consequences, which could come with a Democratic President in 2020.
Leading up to whatever direction it takes for Republicans to confirm Gorsuch, I would expect more Democratic tactics along the lines of the recent actions to deny Republicans a quorum on committee votes on nominations, but even more so. For example, consistently requiring votes on even routine procedural steps. Floor time in the Senate is precious in this incredibly frenetic year, and a drawn-out Supreme Court confirmation crowds out other Republican priorities and demonstrates that Democrats aren’t going down without a fight. In a foregone conclusion, making the majority really work for it may be as good as it gets.