Following Neil Gorsuch’s nomination to the Supreme Court on January 31, a predictably polarizing debate ensued. While the Constitution requires an independent judiciary, judicial appointments, especially to the highest Court in the nation, have become partisan battles. Judge Gorsuch undoubtedly possesses the academic and professional credentials to replace the late Justice Antonin Scalia on the Court, yet the history behind this particular vacancy ensures a hostile confirmation process. Considering President Obama’s nomination of Judge Merrick Garland this past year was denied any Senate hearings due to Republican obstruction, it is no surprise that the Democrats have promised to resist this time around. After meeting with Judge Gorsuch on February 7, Senate Minority Leader Charles Schumer (D-NY) voiced doubts as to whether he would vote in favor of confirmation.
Despite the disdain from Sen. Schumer and other Democrats, Judge Gorsuch, unlike Judge Garland, has been granted a hearing, which began on March 20 in front of the Senate Judiciary Committee. With 52 Republicans and 48 Democrats in the Senate, Republicans would need support from 8 Democrats to even hold a vote to confirm Judge Gorsuch. Confirmation itself only requires approval from a majority of Senators. If they fail to secure the 60 votes needed to move on to the confirmation process, their only option is to go nuclear. The current state of American politics all but guarantees that the confirmation of Judge Gorsuch is contingent on political maneuvering, not on a judgment of his fitness to serve on the Supreme Court. When last year’s Republican Senate denied Judge Garland any opportunity for confirmation, a precedent was set that warrants resistance on behalf of the Democrats; yet, it likely won’t be enough to block the nominee. If necessary, the Republicans will employ the nuclear option because they’ve funneled too many resources into this battle to accept defeat.
Reaching 60 votes is unlikely. If this threshold cannot be passed, Democrats can filibuster and potentially block a vote on the confirmation of Judge Gorsuch. That is, unless Republicans employ the “nuclear option”. A reference to nuclear weapons, the nuclear option is a political tool that allows the Senate Majority Leader to “nuke” or destroy the 60-vote requirement and replace it with a simple majority vote. While Senate Majority Leader Mitch McConnell (R-KY) has relegated the nuclear option as only a last resort, President Trump has encouraged him to employ the tool, if needed. Also, the conservative group Judicial Crisis Network has announced its intention to spend $10 million in advertisements to encourage the confirmation of Judge Gorsuch. With this push from many facets of the Republican support system, Sen. McConnell is expected to do everything he can to confirm Judge Gorsuch, just as he did when blocking Judge Garland.
Nuking the filibuster may seem like a legally dubious decision for Sen. McConnell to make, given that filibusters exist to provide the minority-voting bloc in the Senate with resistance power. However, to an extent, Senate Democrats have themselves to blame. The nuclear precedent for judge confirmations was pushed to its current standard in 2013, when then-Senate Majority leader Harry Reid (D-NV), employed the nuclear option to allow for the confirmation of judges appointed by President Obama. While only appeals and lower court judges (and not a Supreme Court justice) were at stake the 52 Senate Democrats constituted all the necessary votes to confirm the judges, with the nuclear option in play. Ironically, Sen. Reid wrote the blueprint on how Senate Republicans can get Judge Gorsuch confirmed without any bipartisanship. Just like in 2013, there are currently 52 Senators in the majority. And, presumably, if Republicans are unable to get 8 Senate Democrats to cross over, Sen. McConnell can employ the nuclear option and Judge Gorsuch will only need 51 votes to get confirmed.
Despite the precedent set by Sen. Reid in 2013, Republicans are calculating the future political damage of the nuclear option. Potentially, using the nuclear option to confirm Judge Gorsuch could adversely work against them in future conflicts when Senate Democrats hold even the slightest majority. Senator Susan Collins (R-ME) a moderate Republican who recently voted against the confirmation of Education Secretary Betsy Devos, stated, “I am not a proponent of changing the rules of the Senate,” and Senator John Thune (R-SD) stated, in reference to the nuclear option, “It’s risky in terms of the precedent this creates in the long term.” If Republicans lose their majority in the midterms or 2020, the precedent of nuking a filibuster for a Supreme Court confirmation will narrow their power even more. Despite the damage, Sen. McConnell’s desire to confirm Judge Gorsuch indicates his willingness to go nuclear; Sen. McConnell declared, “We’re going to get this judge confirmed.” Considering Sen. McConnell’s efforts in the constitutionally questionable resistance of Judge Garland’s confirmation, it should be expected that he’ll employ the controversial nuclear option to confirm Judge Gorsuch with a simple majority.
There are plenty of justifications Republicans can make for nuking the filibuster in this situation. For starters, the precedent Sen. Reid set in 2013 provides Republicans with evidence suggesting that, if the roles were reversed, Democrats would act in an identical manner. Secondly, the Court has been working with only eight justices for over a year. An incomplete bench with an even number of justices is inadequate, as it does not allow the cases heard before the Court to earn the most complete hearings and rulings. Sen. McConnell in part can blame himself for this issue, but nonetheless, over a year later, there are still only eight justices on the Court.
While the nuclear option would expand the precedent set by Sen. Reid, Democrats filibustering a Supreme Court nominee would also create a new precedent. In a political battle so salient, both sides have and will continue to employ their best arguments as to why the other side is burning the Constitution and their own party is preserving democracy. Even with the slightest 52-48 majority, it should be expected that Republicans, with Sen. McConnell at the helm, will use their favorable position to win this enormously significant and publicized political battle.
The implications of using the nuclear tool to confirm a Supreme Court nominee include many negatives. Foreseeably, future nominees will be met with open arms from the President’s party and staunch obstructionism from the opposition. While the argument blaming Sen. Reid holds some water, judicial appointments below the Supreme Court level are incomparable in terms of publicity and power of the position at stake. Confirming Judge Gorsuch presumably grants Republicans favorable future rulings, yet the future legitimacy of justices should be the priority, no matter what side of the aisle one chooses. Nuking the filibuster would set a dangerous precedent allowing the majority party to appoint and confirm a Justice, rather than the President and the Senate as a whole. Having one party choose who sits on our most important bench, rather than deciding through some semblance of consensus from both parties, jeopardizes the highest Court’s ability to prudently rule on our most difficult legal questions.
Quite simply, the handling of Judge Garland last year constitutes Senate Democrats’ strongest justification for resisting Judge Gorsuch. Unless Judge Garland or another moderate judge had been nominated, a smooth confirmation process would outrage the party’s voter base and make them appear weak. Senator Tom Udall (D-NM) proposed a resolution in which President Trump would meet with the eight current justices to ask if any are close to retirement. If any justice decides to step down, President Trump would appoint Judge Garland to fill their spot, supplementing the appointment of Judge Gorsuch. In this scenario, additionally appointing Judge Garland would ensure both Judge Gorsuch and Garland have smooth confirmation processes in the spirit of bipartisanship. Nonetheless, Sen. Udall’s proposition is unlikely to come to fruition. Democrats have voiced plenty of doubts about Judge Gorsuch, indicating their commitment to resistance; as minority leader, Sen. Schumer has been at the forefront of this skepticism. After meeting with Judge Gorsuch on Feb. 7, Sen. Schumer published an op-ed in the New York Times, likening Judge Gorsuch to Chief Justice Roberts, whom many Democrats ridicule for the 2010 Citizens United ruling, which compromised campaign finance reform. Sen. Schumer also reported that Judge Gorsuch refused to reveal his opinion on issues including the Citizens United and Bush v. Gore rulings, as well as Trump’s travel ban executive order. Public outcries by minority leadership are expected and Sen. Schumer’s tone suggests reaching 60 votes will be unlikely.
For better or for worse, partisanship is prevalent in the Senate. Even though Senate Republicans enjoy only the slightest majority—and not the 60 seats ideally desired in the traditional “consensus-seeking body”—it is within the scope of Sen. McConnell’s power to change the Senate rules and employ an unprecedented nuke of the filibuster. Unless some unforeseen middle ground is established, Judge Gorsuch will be confirmed without a single Democrat in favor; the confirmation process will be entirely controlled by one political party, fundamentally changing the way Supreme Court Justices are appointed in this country.