Gorsuch vote is a win for the right
Supreme Court back to same ideological lean as before Scalia’s death.
The Senate’s confirmation Friday of Neil Gorsuch to the U.S. Supreme Court is a major victory for legal conservatives even though a majority of the justices still favor a woman’s right to choose an abortion and keeping same-sex marriage legal.
Although Gorsuch, a federal appeals judge in Colorado, is regarded as a reliably conservative voice, his addition to the court does not change its ideological make-up because he is fills the seat left vacant by the death last year of Justice Antonin Scalia, a powerful conservative voice on the court for three decades.
When Gorsuch is sworn in Monday morning by Chief Jus
tice John Roberts at a private ceremony at the court, he will become the fourth conservative justice along with Roberts, Samuel Alito and Clarence Thomas.
But Justice Anthony Kennedy, whom Gorsuch clerked for in 1994, tends to side with the liberal bloc of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan on reproductive rights and social issues.
“If he votes like Scalia, there will be no change,” said Susan Low Bloch, a profes- sor of law at Georgetown University who was a law clerk for the late Justice Thurgood Marshall. “If he votes differently from Scalia, there still will be no change.”
After a debate in which both Democrats and Republicans seemed to repeat arguments they had made for the past month, the Senate confirmed Gorsuch, 54-45, with Republican Rob Portman of Ohio supporting him and Democrat Sherrod Brown of Ohio voting against him.
Trump praises Gorsuch
In a statement issued after the Senate vote, Trump said Gorsuch’s “judicial temper- ament, exceptional intellect, unparalleled integrity and record of independence makes him the perfect choice to serve on the nation’s high- est court.”
But though the final hours of debate were anticlimactic, the Gorsuch battle may have left lasting scars on the U.S. Senate. After Democrats tried to block his nomination with a filibuster, Senate Republicans approved a rule change to prohibit filibusters on Supreme Court nominees.
In 2013, Senate Democrats changed Senate rules to prohibit filibusters for nominees to the federal appeals bench and the administration. By doing so, the Senate has ended efforts by a minority of just 41 senators to block nom- inees to the nation’s courts and the president’s cabinet.
What happens with next court opening?
The fury and intensity of the Democratic effort to block Gorsuch perplexed some analysts. They pointed out that if Trump gets a chance to replace Kennedy or one of the court liberals, that move would dramatically nudge the court to right while Gorsuch simply returns the court to the status quo which existed when Scalia was alive.
Democrats clearly were incensed because Senate Majority Leader Mitch McConnell, R-Ky., refused to hold a hearing or a vote last year on President Barack Obama’s choice to replace Scalia — federal appeals Judge Merrick Garland.
“The Democrats knew whatever they did, Gorsuch was going to get on the court,” Bloch said. “And the price the Democrats paid for it was to lose the filibuster.”
“I think that was too big of a price and mistake,” she said. “I guess they were feeling a lot of pressure from the left, but they went through a futile and costly exercise.”
For Democrats, Gorsuch was a preview of coming attractions. Because Ginsburg, 84, Kennedy, 80, and Breyer, 78, are the court’s oldest members, Trump could have an opportunity to name at least one more justice during his term in office.
Those three justices along with Kagan and Sotomayor combined in 2016 struck down a Texas law that required a doctor performing an abortion to have admitting privileges at nearby hospitals and that abortion clinics have hospital-like surgical standards.
In 1992, Kennedy joined then-Justices David Souter and Sandra Day O’Connor in an unusual three-justice opinion that upheld a woman’s constitutional right to choose an abortion, with the three justices concluding government cannot place an undue burden on a woman seeking an abortion.
Last year, Kennedy wrote the majority opinion upholding an affirmative action plan developed by the University of Texas that allows school officials to consider an applicant’s race as one of many reasons for admitting students to its programs.
And in 2015, Kennedy wrote the opinion striking down a federal law that defined marriage as between a man and a woman.
But even though Kennedy has swerved left on social issues, he joined the conservatives in a 2008 opinion, District of Columbia v. Heller, which found that Americans have an individual right to possess a gun for lawful reasons.
And in 2010, he wrote the majority opinion in Citizens United v. Federal Elections Commission, writing “as additional rules are created for regulating political speech, any speech arguably within their reach is chilled.”