With his characteristic showmanship on full display, President Trump waited for prime time on Jan. 31 to reveal Judge Neil Gorsuch as his nominee for the U.S. Supreme Court.
In doing so, Trump fulfilled a key campaign promise to nominate a staunch conservative to the court.
If confirmed, Gorsuch, 49, would replace the late Justice Antonin Scalia, a conservative icon who died unexpectedly in February after three decades on the court.
Scalia’s seat has been empty for nearly a year now, the result of a controversial and unprecedented move by Senate Republican leaders to block President Obama’s nominee, Judge Merrick Garland. Republicans argued that a nominee shouldn’t be considered during an election year and blocked Garland from receiving so much as a hearing. Since then, the court has operated as an eight-member body (with any 4-4 ties upholding decisions made in the lower appeals courts).
Gorsuch currently serves on the U.S. Court of Appeals for the 10th Circuit, in Denver, and closely resembles Scalia in both political ideology and judicial philosophy. Like Scalia — who adamantly opposed gay marriage, abortion, affirmative action, gun control and government regulation — he is deeply conservative and known for his “originalist” perspective on the Constitution as a “dead” document to be interpreted the way the Founders originally intended when they drafted it more than 200 years ago.
Gorsuch would be the youngest justice on the high court and would be expected to once again give it a conservative majority .
Two random facts:
1. If Gorsuch gets the gig, he’ll be working alongside his former boss, Justice Anthony Kennedy, whom he clerked for.
2. At Harvard Law School, Gorsuch was classmates with a guy by the name of Barack Obama.
As a federal judge, Gorsuch was a staunch defender of religious liberty and consistently wary of federal regulations. It’s expected that his decisions on Supreme Court cases will be ideologically consistent with those made by Scalia.
“They really are incredibly similar in their approaches,” Tom Goldstein, publisher of SCOTUSblog, recently told NPR. “Gorsuch does seem almost to have modeled himself on Scalia across one area after another.”
There’s also a good chance that he will find himself in the awkward position of having to rule on the legality of one or more controversial executive actions made by the man who appointed him. Trump’s recent executive order to temporarily block refugees from entering the United States and ban travel from seven Muslim-majority countries has already provoked a storm of litigation and is likely to be the first (of potentially many) of the president’s actions to be challenged in the high court.
So what happens now?
In a standard confirmation process, the president’s nominee must first testify before the Senate Judiciary Committee. If given the green light, the nominee is considered by the full Senate, where a 60-vote threshold is required to overcome a filibuster.
But things in Washington right now are anything but standard. The current relationship between Democrats and Republicans is pretty toxic, with Democrats still seething over the treatment of Garland, Obama’s nominee, who Republicans stonewalled for nearly a year.
So some kind of showdown is pretty inevitable.
It’s still unclear, though, what Democrats will do and how much leverage they have. Although in the minority, there are enough of them in the Senate (48 Democrats; 52 Republicans) to block the 60-vote supermajority needed to confirm a Supreme Court justice. If that were to happen, though, Republicans could strike back and try to invoke the “nuclear option,” a funky maneuver that scraps the existing rules and requires only a simple majority of 51 votes to confirm the nominee.
Bottom line: It might take a while and it’s not going to be pretty, but Gorsuch is pretty likely to be confirmed as the next U.S. Supreme Court justice.
Interestingly, despite Scalia’s deeply conservative views, he was unanimously confirmed by the Senate in 1986, after being nominated by President Ronald Reagan. But the nominating process today is far more politically divisive than it used to be. In fact, until now, the Senate had never in its entire history taken longer than 125 days to vote on a nominee.
Why is this particular nomination such a big deal?
The judiciary is intended to be a nonpartisan branch of government, but reality suggests otherwise; the Supreme Court is sharply divided along partisan lines. Of the eight justices on the court today, four lean pretty consistently to the right (John Roberts, Samuel Alito and Clarence Thomas and, to a slightly less predictable extent, Anthony Kennedy), and the other four, pretty consistently to the left (Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer). Scalia was a reliable vote for conservative causes, one of the five justices who tipped the balance of the court to the right. Gorsuch is expected to stay the court.
Garland, on the other hand, would have likely shifted the balance back to the left.
Additionally, we’re talking about a lifetime appointment. It means that a young nominee like Gorsuch is likely to serve on the court for quite a long time, influencing domestic affairs for generations, long after Trump leaves office.
Raising the stakes even more, several justices on the court are getting up there in years and probably won’t be around for too much longer. Justice Kennedy is 80 and Justice Ruth Bader Ginsburg is 83. That means another appointment — or set of appointments — is likely to happen fairly soon (although how soon is anyone’s guess), a move that could significantly alter the current makeup of the court.
Do presidents always pick nominees who share their politics?
Usually (wouldn’t you?). There are, however, some notable exceptions, including justices who have shifted positions during their time on the court, much to the chagrin of the presidents who appointed them.
President Dwight Eisenhower, for instance, once referred to his appointment of Chief Justice Earl Warren as “the biggest damn fool mistake I ever made.” Likewise, Justice David Souter was far more left-leaning on the bench than ever anticipated by President George H. W. Bush, who appointed him in 1990.
Is the court’s political divide all that unusual?
To some extent, yes. Although most judges aren’t elected or considered “politicians,” you’d be hard pressed to find a judge whose legal decisions aren’t influenced by his or her political beliefs. As such, there have always been partisan divides on the Supreme Court. But in recent years, the political polarization has intensified.
A William and Mary Law School study found that since 1990 there has been a “dramatic increase in the ideological gap between Democratic and Republican appointees.” As a result, it notes, “presidential elections will matter more to Court decision-making than they ever have in this nation’s history.”
The divide extends to the justice’s law clerks, who play a crucial role in both selecting the cases the court chooses to hear and influencing the rulings their bosses make. Justices have historically sought clerks who, to some extent, reflect a range of political views. But as the New York Times reported in 2010: “These days the more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats.”
Who can be a Supreme Court justice?
Anyone! The Constitution doesn’t actually spell out any guidelines on age or education level (although you wouldn’t know it looking at the resumes of the current justices, all of whom attended law school at either Harvard or Yale). Nominees don’t need to have judicial experience. Heck, they don’t even need law degrees. And unlike the presidency, there is no requirement to be a “natural-born” citizen. In fact, foreign-born justices have been appointed six times throughout the court’s history.
Even former presidents can be on the court: President William Howard Taft was appointed chief justice in 1921, nearly a decade after his presidency.
So maybe a Justice Obama or a Justice Trump someday? I wouldn’t hold your breath.
How many cases does the court hear each year, and how does it decide which ones to take?
Again, much of the work is done by law clerks. Each term, they pour through upward of 8,000 requests, called a petition for a writ of certiorari (or a “cert. petition”). These are brought by the petitioners, who have already exhausted all appeals in federal and state courts.
Except on very rare occasions, the court considers only cases that have gone up the federal judicial system food chain: usually starting in a district court and then going to an appellate court. The Supreme Court is the highest court in the land, the final step on the legal ladder. Its decision is law, one that can’t be appealed to any other court. (For a more thorough procedural overview, see the SCOTUS Blog.)
The clerks recommend which appeals their justices should consider or overlook, and the justices then vote. Four of nine justices have to agree to take a case and hear oral arguments. This is called “granting certiorari.”
Only a tiny percentage of those thousands of appeals actually see the light of day. The court now accepts about 80 cases a term, hearing oral arguments between October and April. In that respect, the court’s less publicized decisions to NOT a hear a case are often as consequential (in that it upholds the decision of the lower court).
The petitioner and respondent usually appear in court for an hour-long session, during which they’re pelted with questions from the nine justices (although Justice Clarence Thomas very rarely utters a word).
The justices then meet privately to vote on the decision. Unless the decision is unanimous, a justice from either side is selected to write the majority and dissenting opinions. Later in the term, the court announces — or hands down — its decision.