With so much going on in the political arena these days, it can be hard to focus on any one issue. When Trump nominated Colorado appeals court judge Neil Gorsuch to the Supreme Court on February 1, the news was ablaze with all things SCOTUS—but then we had to go back to dealing with the travel ban, and then Republican lawmakers introduced the American Health Care Act, and then… well, anyway, when the Senate Judiciary Committee began Gorsuch’s confirmation hearing on Monday, we’re sure we weren’t the only people who had sort of lost track of the whole Supreme Court thing. In particular, we had a few questions: what’s the big deal, who is this guy, and what happens next?
What’s all the fuss about?
In early February 2016, Supreme Court Justice Antonin Scalia unexpectedly passed away. Even before Obama named a successor, Republican lawmakers announced their intent to block any SCOTUS appointment made by Obama—no matter who it was—until after the 2016 presidential election. Senate Majority Leader Mitch McConnell justified this decision by insisting that there was no precedent for allowing a “lame duck” president (i.e. a president on his way out of office) to appoint a SCOTUS justice. However, that is a lie.
Nevertheless, McConnell and the Senate Republicans kept their word: when Obama nominated Merrick Garland to the Supreme Court on March 16, the Senate refused to allow him a hearing. His nomination ultimately remained in the Senate for 293 days—more than twice as long as any other Supreme Court nomination in history—before expiring with the inauguration of the new Congressional body in January 3.
Now that Trump’s pick is entering confirmation hearings, Democratic lawmakers are outraged—as far as many of them are concerned, the Supreme Court vacancy will remain an illegitimate seat until and unless Congress agrees to first grant Garland a confirmation hearing. Many Senate Democrats even indicated previously that they were prepared to filibuster any nominee other than Garland.
Who is Neil Gorsuch, anyway?
Trump’s pick for the vacant SCOTUS seat is a 49-year-old Colorado appeals court justice with TV-ready good looks (which may have actually factored into Trump’s decision), an affable personality—and a staunch conservative outlook. Though previous reports that Gorsuch founded a “Fascism Forever Club” in high school have since been proven false, his judicial record suggests that he would very likely prove to be an even more conservative Supreme Court Justice than Scalia was.
Of particular note: Gorsuch’s record suggests that he will prove extremely hostile to reproductive rights and workplace protections. And his confirmation could set the tone for an increasingly conservative Supreme Court as other justices currently on the bench retire—or pass away (like Scalia did).
Okay, so what next?
Gorsuch is currently in the middle of his confirmation hearing before the Senate Judiciary Committee. If the committee approves Gorsuch’s nomination (which is likely), the nomination goes to the full Senate for debate. At the end of the debate proceedings, the Senate votes on scheduling a final confirmation—in other words, they vote on whether or not to vote to approve the candidate. Confusing, we know.
But there’s a catch. (Surprise!) In the final tally, only 51 Senators need to vote in favor of Gorsuch’s nomination in order for him to be confirmed to the Supreme Court. All 52 Senate Republicans are expected to vote in Gorsuch’s favor, so if he reaches that final stage he will likely be approved. However, as of right now, agreeing to schedule that final confirmation (or rejection) requires a Senate majority of 60 votes. This is where the Democrats are threatening to filibuster—the Senate cannot move to a final vote on the nomination without the cooperation of at least 8 Democrats.
Here’s the thing: if Senate Democrats filibuster, Republicans have threatened to deploy the so-called “nuclear option”, which would reduce the end-of-debate threshold from 60 votes to 51—thereby destroying the opportunity for Senators to ever filibuster a SCOTUS nomination. Because many other SCOTUS justices are nearing retirement age, there is a strong chance Trump will eventually get to nominate a second justice (if he doesn’t get impeached first). For this reason, many Democrats are hesitant to risk losing that 60-vote threshold over Gorsuch.
On the other hand, if the Republicans don’t take the nuclear option during Gorsuch’s nomination, they are almost certain to do so next time. And many progressive lawmakers and pundits feel that taking a stand against Gorsuch’s illegitimate nomination is worth the risk.
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