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Tense Senate Confirms Gorsuch to Supreme Court

Colorado jurist will restore conservative tilt as Scalia replacement

Neil Gorsuch is the next associate justice of the U.S. Supreme Court. (Bill Clark/CQ Roll Call file photo)
Neil Gorsuch is the next associate justice of the U.S. Supreme Court. (Bill Clark/CQ Roll Call file photo)

Updated 1:41 p.m. | The Senate confirmed Judge Neil Gorsuch as the next Supreme Court justice on Friday on a mostly party-line vote, 54-45. Democrats Joe Manchin III of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana joined all Republicans present in voting to confirm. Republican Johnny Isakson of Georgia did not vote.

Gorsuch was supported by the fewest number of senators since Justice Clarence Thomas was confirmed in 1991 on a 52-48 vote. 

The 49-year-old appeals court judge from Colorado will be sworn in Monday, the court said. 

Gorsuch is poised to join the Supreme Court and restore its previous conservative ideological tilt, emerging from an epic 14-month partisan battle over a vacancy that reshaped the Senate’s confirmation process for high court nominees.

He will fill the vacancy created by the death of Antonin Scalia in February 2016. His ascension fulfills President Donald Trump’s campaign promise to find a replacement in the mold of the reliably conservative yet polarizing justice.

In a statement that made no reference to the political tensions in the Senate, Trump hailed Gorsuch’s confirmation and his pick.

“Judge Gorsuch’s confirmation process was one of the most transparent and accessible in history, and his judicial temperament, exceptional intellect, unparalleled integrity, and record of independence makes him the perfect choice to serve on the nation’s highest court. As a deep believer in the rule of law, Judge Gorsuch will serve the American people with distinction as he continues to faithfully and vigorously defend our Constitution,” the president said.

Trump only got the chance to make the lifetime appointment because Senate Republicans refused to consider President Barack Obama’s nominee, Judge Merrick Garland, ahead of last year’s presidential election.

To overcome Democratic objections to Gorsuch and advance to the confirmation vote, Majority Leader Mitch McConnell and Senate Republicans gutted long-held filibuster rules that forced bipartisanship for confirmation of high court picks. McConnell on Friday said as he looked back on his Senate career that was one of the “most consequential decisions I’ve ever been involved in.”

Gorsuch, who has built a reputation as a solid conservative on the U.S. Court of Appeals for the 10th Circuit since 2006, can quickly have an effect on a Supreme Court that has avoided major cases while shorthanded. The high court found itself deadlocked 4-4 on controversial cases on immigration and public sector unions last year.

The justices are set for a closed-door conference Thursday to discuss which appeals to hear for the term beginning in October. The final two weeks of scheduled oral arguments for the current term kick off April 17, with cases teed up on religious freedom, a death penalty sentence and debt collection.

Conservative wing to hold

Gorsuch is considered an active questioner during oral arguments and already has an insider’s perspective as a former clerk for two justices, including current Justice Anthony M. Kennedy.

“You’re going to get someone who’s going to be great friends on a personal level with the other justices and he’s going to fit in well on that respect,” said David Feder, a Gorsuch clerk in 2014-15.

Gorsuch brings strong academic credentials to the high court, with degrees from Harvard Law School, and Oxford University where he earned a doctorate in legal philosophy. He is considered a clear writer and bright among the top legal minds on the federal bench.

As a fourth-generation Coloradan, Gorsuch brings geographic diversity to a court dominated by justices mostly from New York, New Jersey or California.

He also brings a history of decisions, most notably on contraception and separation of powers, that legal academics predicted would track closely with Scalia — or even be considered more conservative than the justice he will succeed.

With Gorsuch as the ninth justice, the conservative wing of the high court would retain its 5-4 advantage. Kennedy would likely remain the swing vote, particularly on issues such as same-sex or women’s rights.

Senate Democrats rooted their opposition to Gorsuch in rulings that they say sided with big companies on workers’ rights and campaign finance. They also raised concerns that Trump picked him because he would seek to overturn the landmark 1973 decision in Roe v. Wade giving women the right to an abortion nationwide.

Gorsuch was reluctant at his confirmation hearing last month to detail his views on a host of issues, increasing the flood of anger from the Democratic base that considers this a stolen Supreme Court seat.

Political fight

Democrats used the filibuster to block a vote on Gorsuch on Thursday, the first partisan filibuster for a Supreme Court nominee in Senate history but also the last. Republicans changed the rule by deploying the so-called nuclear option and lowered the threshold to limit debate from 60 votes to a simple majority.

McConnell, who boldly declared hours after Scalia’s death that the vacancy would be filled by the president elected in 2016, laid blame on Democrats for upending the institution’s traditions.

“Now they’re threatening to do something else that’s never been done in the history of the Senate,” the Kentucky Republican said Thursday about the filibuster of Gorsuch.

“And for what reason? For what reason? Because he isn’t qualified? Because he isn’t fit for the job? No. Because he was nominated by a Republican president,” McConnell said. “This is the latest escalation in the left’s never ending judicial war, the most audacious yet, and it cannot and it will not stand.”

Democrats point to Garland’s stalled nomination to highlight that Republicans are active participants in the judicial war that has gone on since the 1980s.

Senate Democrats charge that the end of filibusters for Supreme Court nominees will forever change the confirmation process. It promises to be nastier and even more political, and would likely lead to more ideological nominees when the same party controls the White House and the Senate since the minority party won’t have to be consulted.

No return

Sen. Patrick J. Leahy, D-Vt., who as the longest serving member of the Senate has voted on every current Supreme Court justice, did not have an example Thursday of a president coming to the Senate with the threat of a possible filibuster affecting who was picked.

“But I can remember numerous presidents, Republicans and Democrats, sitting down with Republican and Democratic senators together, and say, ‘Let’s talk about the kind of nominee we’re going to have,’ and then coming up with one who got confirmed,” Leahy told CQ Roll Call.

“It stopped when they did the unconstitutional, unprecedented refusal to even vote on Merrick Garland,” Leahy said. “It stopped then.”

Moderating forces will still play a role on Trump and his successors, who will want to pick a highly qualified Supreme Court nominee who generates positive public reaction or risk the wrath of voters.

For his part, Trump told reporters Thursday that he could fill as many as four Supreme Court vacancies, and the Senate filibuster change won’t affect how he chooses his nominees.

“I don’t think the nuclear option has anything to do with it at all,” he said.

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