The Gorsuch nomination: What’s next

Michael Gerhardt is Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina at Chapel Hill and Visiting Scholar at the University of Pennsylvania Law School. He served as Special Counsel to Chairman Patrick Leahy and the Senate Judiciary Committee for the nominations of Justices Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court.

The Constitution barely sketches the process for making Supreme Court appointments. Article II provides the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.” Besides the fact that Article I empowers each chamber of Congress “to determine rules” for its internal governance, the Constitution confers discretion on the president and the Senate over how to exercise their respective authorities.

Presidents have based Supreme Court nominations on numerous factors, including their nominees’ likely judicial philosophy — that is, how they are likely to rule in constitutional adjudication. Presidents understand that Supreme Court appointments enable them to influence the composition and direction of the court. If they do not like the court’s direction or particular opinions of the court, they can try to appoint people who will change them. Because the justices they appoint can serve for decades, Supreme Court appointments are among presidents’ most enduring legacies.

Once there has been a Supreme Court nomination, senators can exercise their “Advice and Consent” authority in several ways. They can withhold their advice and not undertake any other action, as the Senate did with President Barack Obama’s nomination of the highly regarded judge Merrick Garland to the seat opened as a result of the death of Justice Antonin Scalia almost a year ago. They can defer to presidents, as they did in approving all nine of President Franklin Roosevelt’s Supreme Court nominations. They can hold hearings and decide to take no further action, as occurred when the Senate could not invoke cloture to stop a filibuster against President Lyndon Johnson’s nomination of then-Justice Abe Fortas as Chief Justice of the United States. They can hold hearings and vote against the nomination, as the Senate did when it rejected President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987. They can hold hearings and approve the nominations, as the Senate has done since 1900 with virtually every Supreme Court nominee with strong credentials and mainstream constitutional views.

Over the course of American history, the Senate has confirmed 124 of the 161 nominations that have been made. It has withheld its consent or rejected nominations primarily on one of three grounds – unfitness (lack of qualifications), lack of integrity, or political factors, including disapproval of the nominee’s constitutional views.

A president’s Supreme Court nomination sets the terms for its consideration, as President Donald Trump plainly tried to do during the campaign and when he nominated Judge Neil Gorsuch last week. Throughout the campaign, Trump pledged to nominate someone to the pending vacancy “in the mold of Justice Scalia.” The president kept that promise by nominating Gorsuch, the 162nd person to be nominated to the court. “I have always felt,” the president said, “that after the defense of our nation, the most important decision a president of the United States can make is the appointment of a Supreme Court justice.” The president shrewdly referenced two principal reasons his base supported him – protecting the homeland and appointing Supreme Court justices. He recognized that justices, “depending on their age, [can] be active for 50 years and [their] decisions can last a century or more and can often be permanent.” He stressed that he had kept his promise to nominate someone “in the mold of Justice Scalia.” He even invited Scalia’s widow to the ceremony, calling her “the ultimate representative” of the late justice, “whose image and genius [were] in my mind throughout the decision-making process.” The nominee, too, paid homage to Scalia, calling him a “lion of the law.”

Once President Trump made his nomination, the responsibility for acting on it moved from one end of Pennsylvania Avenue to the other. It is again the Senate’s turn to give its “Advice and Consent,” and Senate Majority Leader Mitch McConnell (R-Ky.) has made clear that this time there will be hearings. Indeed, since 1900, the Senate has given hearings to every Supreme Court nominee except for two who withdrew and Judge Garland.

Since the 1980s, Supreme Court hearings have usually been scheduled about six weeks after the nomination to allow sufficient time for the nominee to complete the Judiciary Committee’s questionnaire and for the majority and minority in the Senate – and the nominee, with the help of the White House – to prepare.

As the nomination works its way through the Senate, it is not hard to figure out the objectives of the Senate majority, the Senate minority and the White House. The White House and the nominee want the same thing – for the nominee to be confirmed as quickly as possible.

The Senate majority’s objective is simple, particularly when, as now, the president’s party controls the Senate: to move the nomination as quickly as possible through the Senate and to secure the confirmation of a new justice. The president has made this objective easier, because Gorsuch is a formidable nominee. He has had an outstanding career, including elite clerkships, law practice and widely regarded service on the U.S. Court of Appeals for the 10th Circuit. He has written a well-regarded book on euthanasia and co-authored another on the law of judicial precedent, and he has spoken and written about how much he revered Justice Scalia and about his own commitment to adhering to text, structure and original meaning in constitutional adjudication.

We can expect the majority to sound several basic themes in defending Gorsuch’s nomination. First, Republican senators will praise him as an outstanding nominee with impressive credentials. Second, they will laud his strong commitment to the same approach to constitutional interpretation as that of Scalia, who will likely be a metric for many Republican senators in assessing Supreme Court nominations. Third, they will not apologize for blocking Obama’s nomination of Garland to the seat. To the contrary, they will argue that the Democrats are responsible for whatever ails the Supreme Court confirmation process and the court. They will argue that the blockade of Garland’s nomination was the Democrats’ fault – that it was a response to Obama’s lawless executive actions, the Democrats’ obstruction of President George H.W. Bush’s and President George W. Bush’s circuit court nominations, the Democrats’ rejection of Reagan’s nomination of Bork to the Supreme Court in 1987, and then-Senator Joe Biden’s supposed threat to slow down judicial nominations during presidential election years. Last but not least, they will proudly defend their decision, moments after Scalia’s passing, to enable the American people to choose the next president to nominate the late justice’s successor.

The Senate minority’s objective is different. Democratic senators are scrambling to get up to speed on the nominee’s record. They are also still smarting from the denial of the seat to Garland. Had Garland been confirmed, his confirmation would have secured, for the first time since 1969, a majority of justices who were appointed by Democratic presidents. Instead, the minority finds itself looking for consensus on how best to respond to a nomination made “in the mold of Justice Scalia.”

To begin with, Democrats might argue that Gorsuch’s being “in the mold” of Scalia means nothing more than ruling as Republican senators would like. Democrats may argue that the nominee is actually to the right of Scalia on some issues. For example, he has criticized the Supreme Court’s (and Scalia’s) longstanding deference to how administrative agencies construe the statutes authorizing them to take action. It will not just be the similarities between the nominee and the late justice that will be closely examined, but also their differences.

Second, Democrats will undoubtedly argue that the Republican obstruction of the Garland nomination in order to give the public a say in who chooses the next justice was disingenuous and without precedent. They will point out that the Constitution does not make the public a formal player in the Supreme Court appointment process. It does not say that the Republican Party should dominate that process (as it has since the Civil War). It does not establish exemptions for Supreme Court appointments during election years. Nearly 20 presidents during election years, including several lame ducks, have made Supreme Court appointments, including President Reagan in 1988. Moreover, Democrats will argue that Republicans have created a new, dangerous precedent of the opposition party’s holding Supreme Court seats hostage until someone from their party is in the White House.

As a minority, Democratic senators do not have enough votes, on their own, to scuttle the nomination, even assuming that most or all of them would agree to do that. If they were able to pick off at least three Republican senators, they could cobble together a majority, but the chances of that are highly unlikely, given the nominee’s strong credentials and how much Republicans want to hang onto Scalia’s seat.

Democratic senators, therefore, might consider three options. First, they may try to delay or slow down Judiciary Committee hearings through a series of procedural moves, such as requesting additional materials from the nominee, urging further background or other investigation, inviting additional witnesses to testify, trying to place holds on debate and voting, and insisting on a detailed, written committee report before the nomination is forwarded to the full Senate for its consideration.

Second, once the nomination has moved through the committee, Democrats might try to block Senator McConnell from placing the nomination on the Executive Calendar and arranging for the Senate to go into executive session and consider the nomination. Usually, unanimous consent is needed for the Senate to proceed into executive session, but if Democrats try to thwart the move, McConnell may consider a non-debatable motion to go into executive session. This requires only a simple majority of those voting.

Once in executive session, Democrats’ options narrow. They could threaten a filibuster. If an outright rejection of the nomination is not in the cards (and it does not at this time appear to be), Democrats might consider that possibility. In 2013, then-Majority Leader Harry Reid (D-Nev.) led a successful effort to deploy the so-called nuclear option, which was a parliamentary move to implement by a majority vote in the Senate the understanding that the Senate rules could not be used to filibuster a lower court judicial or executive branch nominee. The Democrats left untouched the possibility of a filibuster of a Supreme Court nomination. Under the rules as they currently exist, a filibuster of a Supreme Court nomination requires at least 60 senators to invoke cloture – or force a vote – on the matter being filibustered. Some senators and many pundits wonder whether a filibuster is possible.

Senate Majority Leader McConnell has indicated he will not hesitate to use the nuclear option if Democrats threaten to filibuster, and President Trump has encouraged Republicans to do away with the filibuster even before Democrats have had a chance to consider using it. If the filibuster is dismantled, then approval of the nomination requires only a simple majority.

Without the filibuster, Democrats might consider trying to place “holds” on the nomination, but these are used strictly for delay and have to be made through the party leader, who may employ them to object to unanimous consent or to signal the possibility of a filibuster. Senators may also challenge the motion to discharge the nomination from the Judiciary Committee and seek to have it recommitted, a strategy that almost never works. They may demand quorum calls, which require the clerk to call the roll of the Senate. A quorum call cannot be terminated without unanimous consent, which will not be forthcoming. However, additional business must be conducted before another quorum call can be demanded, and the senator urging the quorum call loses the Senate floor. Democratic senators might try to prevent the achievement of a quorum, but Republicans could then attempt to force a quorum through Senate Rule VI, which provides that a “majority of the Senators present may direct the Sergeant of Arms to request, and, when necessary, to compel the attendance of the absent senators.”

Regardless of the options they consider for delaying the nomination, Democrats will use this occasion to educate the American people about how, in their view, this nomination and the president threaten judicial independence. If nothing else, they will try to ensure that, if Gorsuch is confirmed, there will always be an asterisk next to his name designating him as the justice who got the seat denied, in an unprecedented fashion, to Judge Garland.

Once the Senate gives its consent to the nomination, the confirmation process is over. Its real significance will, however, be determined in the contest over the next vacancy on the Supreme Court. Both sides are expecting that to be coming. The only question is when.