Key Senate players in the upcoming Supreme Court confirmation process
On Tuesday evening, President Donald Trump nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit to fill the vacancy on the Supreme Court left by the death last year of Justice Antonin Scalia. The nomination will now pass to the Senate for confirmation or rejection. Last week, as reported by Reuters, Trump consulted with four Senate leaders – Mitch McConnell, Chuck Grassley, Chuck Schumer and Dianne Feinstein – who are poised to be key players in the upcoming confirmation process. This post will look at the roles they, as well as several other senators, are likely to play moving forward.
Gorsuch’s previous experience with the Senate confirmation process was largely uncontroversial, as described in 2006 by The Denver Post. Sen. Lindsey Graham (R-S.C.), serving as chairman of the Senate Judiciary Committee, was the only senator to attend Gorsuch’s confirmation hearings, and the Senate confirmed Gorsuch by voice vote on July 20, 2006. As Sen. Chuck Grassley (R-Iowa) observed today on the Senate floor, 31 of the senators who approved Gorsuch in 2006 are still serving, including 11 Democrats. With the stakes higher for a Supreme Court nomination, Democrats indicating plans to filibuster and Trump already urging Senate Republicans to pursue the nuclear option, Gorsuch faces a much more contentious confirmation this time around.
Sen. Mitch McConnell (R-Ky.), majority leader of the Senate
McConnell has been at the center of the Supreme Court vacancy debate since its very beginning. Last February, only hours after Scalia’s death, McConnell laid out the strategy and rationale that Republicans would follow for the remainder of the election season: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” McConnell did not waver from this stance even as President Barack Obama’s nominee, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, waited a record length of time without a hearing.
In November 2013, Sen. Harry Reid (D-Nev.), then the majority leader of the Senate, enacted a rule change to eliminate the filibuster for certain types of nominations, excluding those for the Supreme Court. A filibuster is a parliamentary device in which a senator or group of senators can delay a vote by prolonging debate, perhaps indefinitely. Typically a filibuster is broken by a separate vote of 60 senators (three-fifths of all senators) to end debate and force a vote on the issue, known as cloture. This 60-vote hurdle makes the filibuster a minority-strengthening rule. After Reid’s rule change, known as the “nuclear option” to those who see it as “blowing up” the Senate and as the “constitutional option” to those who see it as returning to majority-friendly rules in the Constitution, only a 51-vote majority was required to confirm a cabinet or lower court nomination. The “nuclear” or “constitutional” option remains in play in the event of future filibusters of Supreme Court nominees.
McConnell declared Reid’s rule change “a sad day in the history of the Senate.” As he warned Democrats, “Some of us have been here long enough to know the shoe is sometimes on the other foot”; perhaps in a moment of foreshadowing, he added, “You’ll regret this, and you may regret it a lot sooner than you think.”
McConnell is sure to be heavily involved in any decision by Republicans to end the filibuster for Supreme Court nominations, should the Democrats choose to attempt one against Trump’s nominee. Trump has stated that he would want McConnell to execute the nuclear option, saying, “it’s up to Mitch, but I would say go for it.” McConnell has not indicated whether he would actually do so, saying in January only that “what we do know is the new president will fill the vacancy and I expect it to be handled in the way these court appointments are typically handled” – perhaps a challenge to Democrats not to attempt a filibuster. In a statement released Tuesday night, McConnell invited Democrats to accept an up-or-down vote on Gorsuch’s nomination, “just like the Senate treated the four first-term nominees of Presidents Clinton and Obama.”
McConnell has called Gorsuch’s nomination an “outstanding decision,” and he compared Gorsuch favorably to Scalia as a judge who “understands the constitutional limits on the authority of a federal judge.” Speaking Wednesday on the Senate floor, McConnell sought to defuse criticism of Gorsuch by maintaining that Democrats have expressed alarmist concerns about every nominee put forth by the past four Republican presidents, including Justices John Paul Stevens and David Souter (two justices seen as disappointing by many conservatives for their tendency to join liberal rulings). McConnell met with Gorsuch and Vice President Mike Pence on Wednesday morning.
Sen. Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee
Like McConnell, Grassley refused last year to consider any Obama nominee on the grounds that the next president should make the nomination. As he wrote last March for SCOTUSblog:
The American people deserve the opportunity during this election year to weigh in on whether the next Justice should apply the text and original meaning of the Constitution, or, alternatively, his or her own life experiences to changing times to advance his or her own sense of what would be “just decisions and fair outcomes.”
As the election approached and polls seemed to suggest that Hillary Clinton would prevail, Grassley wavered slightly in his position. While maintaining that he would not personally consider a lame-duck confirmation of Merrick Garland in the event of a Clinton victory, he allowed that if “a majority of the Senate changed their mind about doing it in the lame duck, as opposed to January 20, I don’t feel that I could stand in the way of that. But I don’t think I can promote that idea.”
As chairman of the Judiciary Committee, Grassley will have significant authority during confirmation hearings. Any holds or delays the minority might seek (for example, asking for more time for investigation) will be subject to Grassley’s discretion.
Like McConnell, Grassley criticized Senate Democrats for ending the filibuster for lower-court nominations; he described the filibuster as “one of the last meaningful checks on the president – any president.” Grassley further criticized the decision to end the filibuster as “nothing short of complete and total power grab. It is the type of thing we’ve seen again and again out of this administration and their Senate allies.”
During the campaign, Grassley expressed confidence that Trump would nominate the “right type of people.” In a video released Tuesday evening, Grassley praised Gorsuch as “very well-qualified” and one who “believes interpreting law and interpretation the constitution according to original intent.” Harkening back to his promise last year to consider whomever the next president would nominate, Grassley added that he “looks forward to the cooperation of our colleagues at this time.”
Sen. Chuck Schumer (D-N.Y.), minority leader of the Senate
Last year, Schumer was among the Senate Democrats most critical of their Republican colleagues for not giving Garland a hearing. He predicted, “McConnell is going to find himself increasingly isolated in his obstruction,” which he considered inexcusable given the court’s need for nine justices to function:
Senate Republicans need to do their job and give Judge Garland the hearing and vote he deserves because the American people deserve a fully functioning court. Having a deadlocked, 4-4 court could lead to judicial chaos surrounding environmental protections, voting rights, and so many other issues that are important to everyday Americans. This delay has gone on long enough, it’s time for the Senate to do the job we were elected to do.
Schumer will likely be at the center of any Democratic decision to filibuster. When asked earlier this year about the likelihood that Democrats would do so, Schumer responded, “I hope we won’t get to that. And I’ll leave it at that.” Before the nomination, Schumer did, however, indicate that he would be likely to oppose any Trump nominee, saying, “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support.” Schumer also alluded to using a filibuster, stating: “If they don’t appoint someone who’s really good, we’re going to oppose him tooth and nail,” and asserting that “they won’t have 60 votes to put in an out-of-the-mainstream nominee.”
Speaking today on the Senate floor, Schumer again invoked the prospect of a filibuster by arguing that Gorsuch should only be confirmed with at least 60 votes, a threshold that Schumer said would indicate Gorsuch is a “mainstream candidate” with bipartisan support. If Gorsuch does not receive at least 60 votes, Schumer continued, the answer would be not to change the Senate rules but to change the nominee. He observed that both of Obama’s successful nominations passed this 60-vote threshold (Justice Sonia Sotomayor was confirmed by a vote of 68-31, and Justice Elena Kagan by a vote of 63-37).
Sen. Dianne Feinstein (D-Calif.), ranking member of the Senate Judiciary Committee
Last year, Feinstein joined Schumer as a vocal supporter of Garland, whom she recommended to Obama:
Judge Garland’s long record of public service calls for fair consideration, open hearings and a vote. Refusal to do this would, in my judgment, only further diminish the Senate in the eyes of the American people.
Within the Judiciary Committee, Feinstein will likely lead any Democratic efforts to oppose a Trump nominee and delay his referral to the full Senate. She has stated, speaking of herself and other Senate Democrats, “We simply won’t stand aside and watch the tremendous successes achieved over the past eight years be swept away or allow our nation’s most vulnerable populations to be targeted.” Speaking in December of a then-hypothetical Trump nomination, Feinstein indicated, “past is present, and what goes around comes around” – alluding to Republican obstruction of Obama’s nominations – “Now, those are pretty hackneyed sayings, but those are really true around here.”
After the unprecedented and disrespectful treatment of Merrick Garland—a moderate judge who should have been quickly confirmed—the committee will pay very close attention to proposed nominees to ensure the fundamental constitutional rights of Americans are protected.
Speaking today to Andrea Mitchell on MSNBC, Feinstein seemed to take a more tempered position than Schumer, proposing to “recover” and “go on” from Garland’s nomination, rather than attempting to exact revenge on the Republicans:
We are going to do our duty. We are going to do the interspection, the examination, the assessment, the analysis that’s necessary, first of all, to really understand and know the views of this proposed Supreme Court justice. And, then, a decision will be made, and Democrats while either vote for him or vote against him. But the process is important, and it’s important that we carry it out. It’s also important, I think, that we get over what happened last year, and this is hard to do because it went on and on for months, and the humiliation it caused a very good man resounds with all of us still. And so I think there has to be an understanding that a real mistake was made in the way Merrick Garland was handled. We’ve got to recover from it; we’ve got to go on; I think we should go on, but it’s there.
When asked about Trump’s interest in pursuing the nuclear option, Feinstein added that she doesn’t “want to see the Senate of the United States bow down to an executive demand.”
Sen. Orrin Hatch (R-Utah), member of the Senate Judiciary Committee
Hatch, the most senior Republican senator, has gone on record as a general proponent of the filibuster, although it is unclear what he may do should McConnell try to eliminate it. Asked about ending the filibuster in November shortly after the election, Hatch stated, “I’m one of the biggest advocates for the filibuster. It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.”
However, as other senators issued opening statements about Gorsuch, Lisa Desjardins reports for PBS that Hatch took a “virtually unprecedented step” to move two Trump cabinet nominees forward by voting with Republicans to suspend the Senate Finance Committee rule requiring that at least one member of the minority be present for a committee vote, which Democrats were boycotting. Speaking afterward, Hatch did not express any concern about changing this Senate practice.
Sen. Lindsey Graham (R-S.C.), member of the Senate Judiciary Committee
Graham joins Hatch as a Republican senator who might oppose eliminating the filibuster on principle – he has called it a “horrible, terrible idea.” In the midst of heated confirmation battles during the administration of President George W. Bush, Graham joined the Gang of 14, a group of 14 senators – seven Republicans and seven Democrats – in a compromise meant to thwart filibusters while preserving the rule within Senate procedure, except “under extraordinary circumstances,” according to the gang’s memorandum of understanding. The Senate at the time comprised 55 Republicans and 45 Democrats. Under the deal, seven Democrats promised to vote with Republicans for cloture. In return, seven Republicans promised not to vote for changing the filibuster rule, thus denying the proposed rule change the requisite 51-vote majority. As a result of this deal, the Senate confirmed several filibustered nominees, including William Pryor, another judge reportedly considered by Trump.
The deal later paved the way for Samuel Alito’s successful confirmation; the Gang of 14 joined a vote for cloture, overriding a filibuster attempt by Sen. John Kerry (D-Mass.), and the Senate confirmed Alito by a 58-42 vote.
Speaking to Hallie Jackson of NBC News on Tuesday evening, Graham promised that Gorsuch is “going to get confirmed, just a matter of when and how.” When Jackson pressed him on the use of the nuclear option, Graham replied, “it’d be sad to me if we have to go that route with a man like this, but he’s going to get confirmed.” In a statement released that evening, Graham called Gorsuch a “home run” and urged Democrats to consider him, reminding them that he voted for Sotomayor and Kagan.
Sen. Susan Collins (R-Maine)
Collins also represents potential trouble for McConnell and other Republicans as a participant in the Gang of 14’s previous move to preserve the filibuster rule. She has not been a sure vote for Trump’s cabinet nominees, and her statement on Gorsuch is decidedly less enthusiastic than those put forth by other Republican senators:
Judge Neil Gorsuch widely respected for his extraordinary intellect and has impressive academic and legal credentials. I look forward to the Senate proceeding to the next step in this process by holding public hearings in the Senate Judiciary Committee, which will help provide a careful, thorough vetting of this nominee’s record.”
Sen. John McCain (R-Ariz.)
With Graham and Collins, McCain is the only other Republican senator from the Gang of 14 still serving in the Senate. McCain has voiced doubts about removing the filibuster, saying last fall, “I would like to see us not break the 60-vote rule, but I can’t rule out consideration of it if we are just totally gridlocked”; “we also have to keep in mind that at no time in history has one party always remained in the majority. That’s democracy.”
McCain’s colleague from Arizona, Sen. Jeff Flake (R-Ariz.), has also voiced doubts about removing the filibuster, which he says “would change the very nature of the Senate”; “if you like limited government, I think the filibuster is wise.”
When asked during the campaign about Trump’s possible Supreme Court nominations, McCain responded, “I don’t know, because I hear him saying a lot of different things.” However, in a statement released Tuesday evening, McCain said he was “pleased” by the selection and called Gorsuch “a fitting choice to fill the seat held by the late Justice Antonin Scalia.”
Should he criticize Democrats for any perceived obstruction, McCain may come under fire for some comments he made during the campaign, in which he promised “that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” (He later released a statement saying he would evaluate any nominee on the basis of his or her qualifications.)
Sen. Patrick Leahy (D-Vt.), member of the Senate Judiciary Committee
Last February, Leahy criticized the hypothetical idea of filibustering a Supreme Court nominee:
We’ve had show filibusters before, you might vote on somebody for an hour, and then go on to it, just to express displeasure with the nominee. But in the 40 years I’ve been there, nobody, nobody has actually worked seriously to block a vote on a Supreme Court nominee, be it the Republicans or Democrats.
Leahy has also stressed the importance of a nine-justice Supreme Court. Last March he wrote for SCOTUSblog:
The fate of the next nominee should not be prejudged by a handful of Senators meeting behind closed doors. It should be debated and then decided in broad daylight through public hearings and a vote. That is why the Judiciary Committee holds public hearings and then send the nominee to the full Senate for a vote – even when a majority of the committee opposes the nominee. It is a recognition that the decision as to who is worthy of being on the Supreme Court is one that every Senator must make after careful and public consideration. … The American people deserve a fully functioning Supreme Court.
For Gorsuch’s confirmation hearing for the U.S. Court of Appeals for the 10th Circuit, Leahy submitted written questions on subjects such as judicial activism and deference, environmental law, and physician-assisted suicide, in reference to the then-recent case of Terri Schiavo. Leahy was not the only senator to address the latter topic, an issue Gorsuch has written about extra-judicially. In 2004, Gorsuch wrote an article published in the Wisconsin Law Review on “The Legalization of Assisted Suicide and the Law of Unintended Consequences: A Review of the Duth and Oregon Experiments and Leading Utilitarian Arguments for Legal Change.” The same summer as Gorsuch’s hearings, Princeton University Press published his book, “The Future of Assisted Suicide and Euthanasia”; the publisher described the book as “the most thorough overview of the ethical and legal issues raised by assisted suicide and euthanasia–as well as the most comprehensive argument against their legalization–ever published.”
On Tuesday evening, Leahy released a very critical statement. In addition to attacking Gorsuch’s record, which he stated “has shown a willingness to limit women’s access to health care,” Leahy promised a “thorough and unsparing examination of this nomination” after Senate Republicans’ obstruction of Garland’s nomination and what Leahy called “the unconstitutional actions of our new President in just his first week.” He said he had hoped Trump would “work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together.”
Recommended Citation: Andrew Hamm, Key Senate players in the upcoming Supreme Court confirmation process, SCOTUSblog (Feb. 1, 2017, 5:43 PM), http://www.scotusblog.com/2017/02/key-players-upcoming-supreme-court-confirmation-process/