After over a year of intense, partisan political strife that led to a contentious Senate rule change – dubbed the “nuclear option” – President Donald Trump’s nominee for the Supreme Court, Neil Gorsuch, was sworn in as an associate justice on Monday in the White House Rose Garden to replace the late Justice Antonin Scalia.
Now Justice Gorsuch, the former judge of the United States Court of Appeals for the Tenth Circuit faced a tumultuous road to the bench following a risky political strategy from the GOP to block President Barack Obama’s nomination of Judge Merrick Garland to the post. Never before had a Supreme Court nominee been denied so much as a hearing for their candidacy; however Republicans, under the leadership of Sen. Mitch McConnell, refused to listen to arguments for Garland’s nomination citing the looming presidential election.
Eric Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights in the Maurice A. Deane School of Law, sees Gorsuch’s confirmation as a clear victory for the GOP and Trump. “In terms of strategy and tactics, I thought it was terribly played by the Democrats and well-played by the Republicans,” Freedman said. “[Republicans] not only took a gamble and won on the Merrick Garland seat, but more critically, Donald Trump did nominate a reassuring conservative, entirely mainstream figure and that made their position extremely credible.”
Senate Democrats filibustered Gorsuch’s nomination, arguing that the vacant seat was Obama’s to fill since he had months to find Scalia’s successor after his death in February of last year.
Since Garland was blocked, democratic leadership called on Trump to put forth a more mainstream nominee; instead, Senate Republicans invoked the so-called “nuclear option,” eliminating the 60-vote threshold for Supreme Court justices and pushing Gorsuch through with a vote of 54-45. Three Democrats, Sens. Heidi Heitkamp, Joe Manchin III and Joe Donnelly voted with 51 Republicans to confirm him.
“He is certainly more than qualified and I think that the attempt to paint him as some sort of extremist has been thoroughly misguided,” Freedman said. “It’s misguided because it’s not factually true and it’s misguided politically because it’s a form of crying wolf that will tend to reduce the credibility of people who might want to oppose the next nomination of a candidate who truly is extremist.”
Gorsuch is expected to employ an originalist philosophy regarding interpretation of the Constitution, and the textualist practice of judging a law by its wording and not taking outside variables into consideration – both ideologies that his predecessor was known for.
Nathaniel Aron, the president of Hofstra College Republicans said, “As a judge, [Gorsuch] embodies the American value that the Constitution is not a living breathing document that can be altered for political gain, but an everlasting commitment to the promise our Founding Fathers had when making it.”
Jesse Saunders, the president of Democrats of Hofstra University, categorically disagreed. “Our constitution was designed as a living breathing document meant to change with the times; having another originalist on the Court will only push us backwards and halt the progress we have made in recent years.”
Freedman sees Gorsuch as a comparable replacement for Scalia and suggests this is the correct comparison to make, not how Gorsuch will be potentially different from Garland. “The right comparison is where [the Court] was on the day before Justice Scalia died and today when Justice Gorsuch is filling that seat. That’s the comparison and reasonably speaking, there’s not going to be a whole lot of change,” Freedman said. “Essentially what you’ll see with Justice Gorsuch is a continuation of the trends that were there when the seat was being filled by Justice Scalia.”
The simple majority now needed to confirm a Supreme Court nominee is viewed as dangerous to some who fear the disappearance of consensus for such a powerful – and lifelong – position.
“Over the long-run, it’s certainly bad for the Court in the sense that where the president and the Senate are of the same party, the president has less incentive to pick somebody acceptable to a broader spectrum of opinion – which is not a good thing,” Freedman said. “The structure of the Constitution contemplates that whoever is nominated will have to achieve a certain amount of consensus because after all the person – among other things – will be judging between the executive branch and the legislative branch. If you only need 51 votes instead of 60 votes, you reduce the level of consensus necessary and that’s not good because if the president and the Senate are controlled by the same party, it emboldens the president to pick someone who is farther out of the mainstream.”
Sen. Chuck Schumer, the Senate minority leader, led the opposition against Gorsuch’s nomination, saying the seat was stolen from a Democratic president. Freedman says this is pure politics.
“It was not stolen. It was certainly an unprecedentedly bold political move which might have backfired terribly. It might have resulted in voter outrage and Democratic control of the Senate – but it didn’t,” Freedman said. “All that happened is that a political tactic was used that was somewhat novel, but it was successful and all within the rules of the game.”