Gorsuch drama heads for its climactic week
The upcoming vote on the Supreme Court nominee will likely see the end of the last vestige of Senate comity.
There was no filibuster for Clarence Thomas, whose Supreme Court confirmation hearings provoked a national uproar over sex, race and the behavior of powerful men.
Antonin Scalia, for a generation the court’s irrepressible conservative id, earned 98 votes in the Senate. Ruth Bader Ginsburg, now the patron saint of liberal jurisprudence, got 96.
But with the Senate careering toward a chamber-rattling showdown over President Donald Trump’s nominee, Judge Neil Gorsuch, the body’s long history of relative collaboration on Supreme Court matters has come to this: Next week, the last bastion of comity is expected to fall over a plainly qualified, mild-mannered nominee who had no major stumbles in his confirmation hearings.
Each party’s justification can be summarized with a schoolyard classic: They started it.
“I worry for the institution,” said Sen. Susan Collins, R-Maine, who broke with her colleagues last year in calling for a hearing and a vote on Judge Merrick Garland, President Barack Obama’s own plainly qualified, mild-mannered nominee who the Senate’s Republican leaders denied a vote. “I think, at the risk of alienating everyone I have to work with here, that there’s real shortsightedness on both parts.”
Leaders of both parties seem largely resigned to the next act. Republicans are eager to vote on Gorsuch’s nomination next week, but he is seen as unlikely to attract the support of at least eight Democrats, which he needs to reach the 60 votes necessary to overcome an expected filibuster. So Majority Leader Mitch McConnell has hinted strongly that he intends to change long-standing rules to elevate Gorsuch with a simple majority vote, if necessary. Trump has encouraged such a move.
The specter of Garland, whom Republicans refused to even consider in a presidential election year, has wafted over Gorsuch’s nomination from the beginning, as Democrats and the party’s progressive base stewed over what they viewed as a stolen seat.
But veteran lawmakers and scholars of the court see the present tumult in a deeper context: a prospective Senate nadir following years of creeping institutional shifts, a mutual recognition of the judiciary’s capacity to accelerate a party’s agenda, and a bipartisan embrace of hypocritical arguments and counterarguments, adopted and abandoned with the political winds.
“This is more the coup de grâce than a new beginning,” said Jeffrey Rosen, president of the National Constitution Center in Philadelphia and an author on Supreme Court matters. “It may indeed make it impossible for presidents to confirm any nominee at any point in their terms unless they also have control of the Senate.”
Some past flash points are familiar — charged enough to enshrine “Bork” as a verb and forever alter the connotations of Coke cans — rendered already in history as signposts of the electrified politics surrounding the court’s nominees. Other episodes, like the escalating partisan tensions over federal judgeships, served to erode Senate cooperation on judicial matters in less immediately perceptible ways.
A surge in spending from outside groups, particularly on the right, has also increas- ingly lent the proceedings a campaign-style feel.
Then there was the precursor in 2013, when Democrats controlled the Senate under Obama. Facing a blockade of the president’s appeals court and executive branch nominees, the party changed the rules to bar filibusters for such positions, but left the filibuster for Supreme Court nominations untouched.
Republicans have not forgotten.
“I say to my friends on the other side of the aisle, you’ll regret this,” McConnell announced at the time. “And you may regret it a lot sooner than you think.”
Senate Democratic leader Chuck Schumer has indeed said he regrets the choice by then-Democratic leader Harry Reid.
But in an interview Thursday at his office in the Capitol, Schumer said his party’s efforts were about more than Garland, citing Gorsuch’s record on workers’ rights and concerns that he has not demonstrated sufficient independence from Trump.
The Senate’s rejection in 1987 of Judge Robert H. Bork signaled a newfound focus on judicial philosophy and temperament, not merely a nominee’s qualifications, as grounds for credible opposition.
Four years later, Thomas’ explosive hearings and narrow confirmation, by a vote of 52-48, cemented the process as inescapably political, even though the next quarter-century of Supreme Court confirmations often proceeded with a bipartisanship that has now summarily vanished.
And for all the outcry over Thomas, no senator chose to filibuster him.
Thomas is one of two sitting justices, along with Justice Samuel Alito, to have fallen short of 60 votes, complicating Democrats’ recent claims that Gorsuch must be held to a 60-vote “standard” for confirmation. There is likewise, with respect to Garland, no rule prohibiting the consideration of Supreme Court nominees eight months before an election.
Sanford V. Levinson, a Supreme Court expert at the University of Texas School of Law, said the present enmity stems as much from bitter quarrels over lower-court judgeships as from past clashes over Supreme Court picks.
He noted the series of filibusters against judicial nominees under President George W. Bush.
“The Democrats did escalate,” Levinson said. “And the Republicans in turn escalated further with regard to doing what they could to delay Obama’s appointments — and then the kind of ultimate escalation with regard to Merrick Garland.”
Schumer argued that the treatment of Garland was “worse than a filibuster.” And no one, he added, is forcing the Republicans’ hand.
“If they change the rules, it’s their volition,” Schumer said.