Line of the Day: “I think he wants to highlight the contributions that he has made. And I think through a lot of the actions and statements that he’s going to make, I think the contributions of Frederick Douglass will become more and more.” -White House Press Secretary Sean Spicer responding to press questions about President Trump’s statement that Douglass, who died in 1895, “has done amazing things.”
Last week, President Trump presented to America the long-awaited choice to fill the Supreme Court seat left vacant by the passing of Judge Antonin Scalia last February. That I say “the” long awaited choice” rather than “his” is not a cute play on words, as the pick was originally not Trump’s to make. President Obama of course tapped Judge Merrick Garland to fill Scalia’s seat but he was not given a hearing. So the pick went to Trump who chose 10th Circuit Appeals Judge Neil Gorsuch of Colorado.
The pick came as a surprise to no one. During his campaign, Trump vowed to appoint one of 21 judges, all of whom were approved by the conservative leaning filibuster. Having picked Gorsuch, he appears to have fulfilled his pledge to put an “originalist” in the mold of Scalia on the court. Gorsuch himself does little to deny that, calling the late justice, “a lion of the law. Agree or disagree with him, all of his colleagues on the bench shared his wisdom and his humor. And like them, I miss him.”
Right off the bat, a Republican talking point of late has been that when Gorsuch was nominated to the Court of Appeals in 2006, he was confirmed by a vote of 99-0. Cited are the Democratic Senators who voted for him that year who are still serving today (with special emphasis on Chuck Schumer as Minority Leader). But while it might be hard for the American people to follow the minutia of Circuit Courts vs. the Supreme Court, the fact is that SCOTUS is the be-all and end- all. What they say goes. In other words, voting to seat a qualified nominee on a lower court does not mean the same should be done for a seat on the highest court in the land. Moreover – and this will all come out during the confirmation hearings, rulings Gorsuch made while on the bench over the past 11 years would not have come up during his testimony for that post.
That said, the battle lines are drawn unusually early for a Supreme Court nomination – both sides have rightfully concluded that Gorsuch cannot possibly be another David Souter (ambiguous positions that go contrary to the GOP President who appointed him). There is also no denial that Gorsuch offers most Democrats little to like on a philosophic or ideological level. But assuming his path through the confirmation process is relatively non-controversial (which can’t be assured given late reports of potential resume inflation), some Democratic Senators might be obliged to at least advance his nomination for personal reasons.
The only question is how hard Democrats will fight. Will they try to filibuster the nomination to death and, more consequentially, will the Republicans try to invoke the nuclear option and limit the 60 vote threshold required to set a nomination up for a final vote, thereby confirming a Supreme Court nominee with 51 votes?
First off, we know right now that there will be some form of a filibuster, if only because Oregon Senator Jeff Merkley has vowed to conduct one. Other Senators, including Elizabeth Warren, Tammy Baldwin have vowed to not cast a vote to invoke cloture. But it would more resemble the half-hearted filibuster used against Sam Alito in 2006 when two Senators named Barack Obama and Joe Biden opposed cloture, which was enacted 72-25 (though in this case, Gorsuch will have a minimum of 35 members opposing it). But the reason I am guessing the Senate won’t be going nuclear: just enough Democrats will back cloture because this isn’t the “change the balance” seat. And in part because for many, re-election looms.
Five Senators from deep red states who are preparing themselves for very stiff re-election challenges next year have publicly said that they want an “up” or “down” vote for Judge Gorsuch. They are Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Jon Tester of Montana. Senator Chris Coons of Delaware has said the same and Angus King of Maine, an Independent who caucuses with the Democrats, has strongly hinted that is his preference as well. That would be 59 votes for cloture, one short of the magic number. But Florida’s Bill Nelson, based on the competitive nature of his state and past history, seems like a probable vote for cloture. In 2003, he was one of just four Democrats to vote to end the filibuster of Miguel Estrada, the embattled nominee to a DC Appeals Court Judge. True, Florida is home to a large Hispanic population and Estrada supporters but it’s worth pointing that he is facing the voters next year as well. He was not in his election cycle in 2003.
The other reason Democrats might not fight tooth and nail – in that they’d let their most vulnerable members have a pass, is the dynamics of the court. Gorsuch would replace Scalia, his ideological soulmate. A retirement by say, Anthony Kennedy or, less likely, Ruth Bader Ginsburg, would undeniably change the balance which means a filibuster is not only inevitable but so certain that the cots the Senators would sleep on are already made. Now some opponents of Gorsuch are saying that his nomination will change the balance of the court because, once Scalia died, conservatives were deprived of a decisive vote. But Democrats will need the credibility to mount a filibuster in the future, particularly if President Trump nominates someone who is more unambiguously outside the mainstream. And trying to keep the seat open for four years – particularly a non “change the balance seat” will severely compromise their ability to do so.