When nominated, Gorsuch was a sitting judge on the United States Court of Appeals for the Tenth Circuit, a position to which he had been appointed by President George W. Bush in 2006. Democratic Senators launched a filibuster against Gorsuch's nomination to block his confirmation. However, Republicans invoked the "nuclear option", eliminating the filibuster with respect to Supreme Court nominees.[1] The Senate ultimately confirmed Gorsuch's nomination to the Supreme Court by a 54–45 vote on April 7, 2017 (all Republicans and three Democrats voted in his favor). Ten days after his confirmation, Gorsuch heard his first case as the 101st associate justice of the Court, in Anthony Perry vs. Merit Systems Protection Board.[2]
Background
On February 13, 2016, Associate JusticeAntonin Scalia died unexpectedly.[3][4] His death triggered a protracted political battle that did not end until the Senate confirmed Gorsuch's nomination in April 2017.
Political commentators at the time widely recognized Scalia as one of the most conservative members of the Court, and noted that President Barack Obama had an opportunity to name a more liberal replacement, a move that could alter the Court's ideological balance for many years into the future.[5] The president ultimately nominatedMerrick Garland on March 16, 2016. His confirmation would have given Democratic appointees a majority on the Supreme Court for the first time since the 1970s.[6] Republican Senate leaders, citing the fact that the vacancy arose during Obama's final year as president, declared that the Senate would not even consider a nomination from the president.[7]
Garland's nomination expired on January 3, 2017, with the end of the 114th Congress, 293 days after it had been submitted to the Senate.[7] As a result of the nomination's defeat, Scalia's seat remained vacant until after Donald Trump's January 20, 2017 presidential inauguration.[7] Only the 15th time in U.S. Senate history that a Supreme Court nomination had lapsed at the end of a session of Congress,[8] many Democrats reacted angrily to the Senate's refusal to consider Garland, with Senator Jeff Merkley describing the vacant seat as a "stolen seat".[9] However, Republicans such as Senator Chuck Grassley argued that the Senate was within its rights to refuse to consider a nominee until the inauguration of a new president.[10]
Nomination
Potential candidates
During the 2016 presidential campaign, while Garland remained before the Senate, Trump released two lists of potential nominees. On May 18, 2016, Trump released a short list of eleven judges for nomination to the Scalia vacancy.[11] In September 2016, Trump released a second list of ten possible nominees, this time including three minorities.[12]
After winning the presidential election, Trump and White House Counsel Don McGahn interviewed four individuals for the Supreme Court opening, all of whom had appeared on one of the two previously-released lists.[13] The four individuals were federal appellate judges Tom Hardiman, Bill Pryor and Neil Gorsuch, as well as federal district judge Amul Thapar, all appointed to the federal bench by President George W. Bush[13] While Pryor had been seen by many as the early front-runner due to the backing of Attorney General Jeff Sessions, many evangelicals expressed resistance to him, and the final decision ultimately came down to Gorsuch or Hardiman.[13] Hardiman had the support of Trump's sister, Judge Maryanne Trump Barry,[13] but Trump instead chose to nominate Gorsuch.[17]
Announcement
President Trump announced the nomination of Gorsuch on January 31, 2017. The nomination was formally received by the Senate on February 1, 2017, and was subsequently referred to the Senate Judiciary Committee.[8] At the time of his nomination, Gorsuch was described as solidly conservative, but likely to be confirmed without much difficulty.[18][19][20] Richard Primus of Politico described Gorsuch as "Scalia 2.0" due to ideological similarities,[21] and a report prepared by Lee Epstein, Andrew Martin, and Kevin Quinn predicted that Gorsuch would be a "reliable conservative" similar to Scalia.[22]
According to The Washington Post, Trump considered rescinding Gorsuch's nomination, venting angrily to advisers after his Supreme Court pick was critical of the president's escalating attacks on the federal judiciary in a private February meeting with Democratic legislators.[23]
Responses to the nomination
Neil Gorsuch with Senate Judiciary Committee Chairman Chuck Grassley, February 1, 2017
The Judicial Crisis Network enthusiastically rallied behind Gorsuch after running a campaign against Merrick Garland, spending a total of $17 million to these ends.[34]
Ticket for the March 2017 Neil Gorsuch Supreme Court nomination hearing before the Senate Judiciary Committee
Gorsuch's nomination was first considered by the Senate Judiciary Committee, which holds hearings on all federal judicial nominations and decides whether or not to send nominations to the full Senate for a final confirmation vote.[35] In the 115th Congress the committee consisted of 11 Republicans and 9 Democrats, and was led by Republican Chuck Grassley. In preparation for the hearing, the committee requested the Department of Justice (DOJ) to send all documents they had regarding Gorsuch's work in the George W. Bush administration; and by the time the hearing commenced, the DOJ had sent the committee over 144,000 pages of documents and, according to a White House spokesman, more than 220,000 pages of documents altogether.[36] Gorsuch's confirmation hearing started on March 20, 2017, and lasted four days.[8][37]
On the first day of hearings, March 20, senators largely used their opening statements to criticize each other, with Ranking Democrat Dianne Feinstein complaining of the "unprecedented treatment" of Judge Merrick Garland, while Democrat Michael Bennet felt "two wrongs don't make a right", with Republican Ted Cruz insisting President Trump's nomination now carried "super-legitimacy".[38]
Democratic senators repeatedly criticized Gorsuch for his dissent in Transam Trucking v. Administrative Review Bd., colloquially referred to as the "frozen trucker case", where the Tenth Circuit Court of Appeals ruled in favor of a truck driver who, after waiting hours for relief, had finally abandoned his unheated truck and trailer in dangerously inclement conditions. Democrat Dick Durbin told Gorsuch that the cold weather described in the facts of the case was "not as cold as your dissent".[38] Durbin also criticized the accuracy of his opinion in the Burwell v. Hobby Lobby case, where Gorsuch contended that contraception "destroys a fertilized egg," and that he had held the Religious Freedom Restoration Act included protection for corporations, rather than just individuals.[39]
In his own 16-minute opening statement, Gorsuch repeated his belief that a judge who likes all his rulings is "probably a pretty bad judge." He emphasized his decisions were based on "the facts at issue in each particular case." He also noted that his extensive record included many examples where he ruled both for and against disadvantaged groups.[37][38]
On the second day of hearings, March 21, Gorsuch responded to questions by committee members. When Chairman Chuck Grassley asked Gorsuch if he would "have any trouble ruling against the president who appointed you", Gorsuch replied, no, and "that's a softball".[40] Ted Cruz used his time to ask Gorsuch about The Hitchhiker's Guide to the Galaxy, basketball, and mutton busting.[40] When asked by Republican Lindsey Graham how he would have reacted if during his interview at Trump Tower the President had asked him to vote against Roe v. Wade, Gorsuch replied "I would have walked out the door".[40]
Democratic senators continued to criticize Gorsuch on his dissent in the truck driver case, with Dianne Feinstein asking him "will you be for the little men" and Democrat Al Franken telling the judge the facts of the case constituted an "absurdity exception" to the Plain Meaning Rule, which Gorsuch relied upon in his dissent.[41] Franken went on to say "I had a career in identifying absurdity" (referring to his former career as a comedian).[40] Democrat Patrick Leahy used his time to criticize Republicans' obstructions of the Garland nomination, disparage the policies of President George W. Bush that Gorsuch had defended at the Justice Department, and to ask Gorsuch how he would rule in Washington v. Trump, a pending case concerning the legality of Trump's Executive Order 13769, colloquially referred to as the "Muslim Ban." Gorsuch refused to comment on active litigation and explained that Justice Department lawyers must defend their client, while characterizing Garland as someone whom he admires, "an outstanding judge" and that he always reads Garland's opinions with "special care".[40]
On the third day of hearings, March 22, Gorsuch continued to answer committee members' questions. Republican Orrin Hatch asked Gorsuch if he thought his writings reflected "a knee-jerk attitude against common-sense regulations", to which the judge replied "no".[42] Democrat Sheldon Whitehouse spent the bulk of his allotted time describing to Gorsuch the negative effects of "Dark money" contributed by unknown donors. He also warned that the Court's 2010 Citizens United ruling's elimination of limits for political spending by corporations in elections could result in undue corporate political influence, and asked Gorsuch if would be subject to "capture" by big business, to which he replied "nobody will capture me".[43][44]
During her allotted time, Democrat Amy Klobuchar pressed Gorsuch on what she viewed as his "selective originalism," observing that Gorsuch, who self-identifies as an originalist, had not consistently interpreted legal texts, including the Constitution, by the original public meaning that they would have had at the time that they became law.[43] Later, when Dianne Feinstein asked him a question on the Equal Protection Clause and tensions between originalism and the later expansion of constitutional protections for women and racial minorites after its original drafting, Gorsuch stated that originalism did not seek "to return us to horse and buggy days" and that "it matters not a whit that some of the drafters of the Fourteenth Amendment were racists. Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That's what they wrote."[43]
That same day, the Supreme Court unanimously reversed the Tenth Circuit in an Individuals with Disabilities Education Act case Gorsuch had not been involved in, although in 2008 he had written for a unanimous panel applying the same circuit precedent.[44] Still, Senate Minority Leader Charles Schumer said this demonstrated "a continued, troubling pattern of Judge Gorsuch deciding against everyday Americans, even children who require special assistance at school".[43]
On April 4, BuzzFeed and Politico ran articles highlighting similar language occurring in Gorsuch's book The Future of Assisted Suicide and Euthanasia and an earlier law review article by Abigail Lawlis Kuzma, Indiana's deputy attorney general. Academic experts contacted by Politico "differed in their assessment of what Gorsuch did, ranging from calling it a clear impropriety to mere sloppiness".[45][46][47][48]
John Finnis, who supervised Gorsuch's Oxford dissertation at Oxford stated, "The allegation is entirely without foundation. The book is meticulous in its citation of primary sources. The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is, frankly, absurd." Kuzma stated, "I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the 'Baby/Infant Doe' case that occurred in 1982."[48]Noah Feldman, a Harvard Law professor, thought that Gorsuch had committed "minor plagiarism", that deserved "no more punishment than the embarrassment attendant on its revelation".[49]
Committee vote
On April 3, 2017, the Senate Judiciary Committee endorsed the Gorsuch nomination, sending it to the full Senate for final action by an 11–9[8]party-line vote, with all Republican members voting for him and all Democratic members voting against. The last time the committee's vote to approve a Supreme Court nominee split precisely along party lines was in 2006 on the Samuel Alito nomination.[50][51][52]
Gorsuch needed to win a simple majority vote of the full Senate (51 votes) to be confirmed; however, a filibuster by the opposition would add an additional requirement, a three-fifths supermajority vote in favor of cloture (60 votes), which would allow debate to end and force a final vote on confirmation. At the time, Republicans held 52 seats in the 100-seat Senate, and could also count on (if needed) the tie-breaking vote of Vice PresidentPence, acting in his Constitutional capacity as President of the Senate.[53] After nominating Gorsuch, President Trump called on the Senate to use the "nuclear option" and abolish the filibuster for Supreme Court appointments if its continued existence would prevent Gorsuch's confirmation.[54] The nuclear option was used in 2013 by then-Majority Leader Harry Reid to abolish filibusters for all presidential appointments except nominations to the Supreme Court.[52]
While some Republicans such as John McCain expressed reluctance about abolishing the filibuster for executive appointments, others such as John Cornyn argued that the Republican majority should reserve all options necessary to confirm Gorsuch.[53]
During the last day of committee hearings, Senate Minority Leader Chuck Schumer announced that he would filibuster the nomination.[55] Democratic opposition focused on complaints saying that Scalia's seat should have been filled by President Obama, rather than on Gorsuch himself.[56][57] In addition, Democrats Al Franken, Elizabeth Warren, and Kamala Harris, along with IndependentBernie Sanders each criticized various aspects of Gorsuch's record. Additionally, Jeff Merkley said he would do "anything in his power"—including the power of filibustering—to oppose Gorsuch's nomination.[58]
On April 6, 2017, Democrats launched a filibuster against Gorsuch's nomination. In response, Republicans invoked the nuclear option and changed the Senate rules to end filibusters for Supreme Court nominees. The move came after Democrats blocked the nomination under the previous rule, when only four Democrats crossed-over and voted with Republicans for cloture: Michael Bennet, Joe Donnelly, Heidi Heitkamp and Joe Manchin.[59] After the rules change, a second cloture vote was held; this one, needing only a majority of Senators voting, passed, bringing debate to a close.[60][61]
Full Senate vote
The swearing-in ceremony of Gorsuch on April 10, 2017, attended by President Donald Trump and associate Justice Anthony Kennedy
The Senate confirmed Neil Gorsuch to be an associate justice of the Supreme Court on April 7, 2017, by a vote of 54–45.[8] All Republicans present, along with Democrats Joe Manchin, Heidi Heitkamp and Joe Donnelly, voted to confirm him.[62] Republican Johnny Isakson, who had supported the nomination, was absent for the vote because he was recovering from back surgery.[63]
On April 10, Gorsuch took the prescribed constitutional and judicial (set by federal law) oaths of office, and became the 113th member of the Supreme Court.[65] At age 49, he was the youngest person to join the Court since Clarence Thomas, at age 43, in 1991. Also, having been a law clerk for Anthony Kennedy (1993–94), he became the first Supreme Court justice to serve alongside a justice for whom he had previously clerked.[66]
^ abcdeGoldmacher, Shane; Johnson, Eliana; Gerstein, Josh (January 31, 2017). "How Trump got to yes on Gorsuch". Politico. Archived from the original on February 1, 2017. Retrieved February 1, 2017.
^Boyer, Dave (February 1, 2017). "Former Obama official endorses Gorsuch nomination for Supreme Court". The Washington Times. Washington, DC. Archived from the original on February 2, 2017. Retrieved February 3, 2017. I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law," Mr. Katyal wrote in a New York Times op-ed. "His years on the bench reveal a commitment to judicial independence – a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.
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