Senate confirms Neil Gorsuch to the supreme court after historic rules change
Donald Trump welcomed the first major victory of his presidency on Friday when the Senate confirmed Neil Gorsuch to the supreme court in an anticlimactic ending to the unprecedented partisan showdown over the vacancy caused by the death of Justice Antonin Scalia.
Gorsuch was approved after a marathon three-day hearing, a floor debate that included an all-night protest by a Democratic senator and a historic rules change that allowed his nomination to go forward on a simple majority.
Gorsuch is a Colorado native with an impressive Ivy League resume that includes degrees from Columbia University and Harvard Law school as well as a doctorate from Oxford University where he studied on a Marshall scholarship. For the past decade, he has served on the tenth circuit court of appeals. He was appointed to that seat in 2005 by George W Bush, and, by contrast, confirmed expeditiously – the Senate approved him on a voice vote with no objections.
At just 49, the staunch conservative could have a long tenure, though his confirmation restores the ideological tilt of the court, which is often narrowly divided five to four on a major decision.
Gorsuch will replace Scalia, the court’s conservative colossus whose death in February 2016 instantly altered the dynamics of the presidential race. From the bench, Scalia elevated the judicial theory of originalism, to which Gorsuch adheres.
Throughout the campaign, Trump promised to appoint a “pro-life” justice to the court. Gorsuch has never ruled directly on abortion and his testimony during the hearing hardly settled the matter. A passage from his book, The Future of Assisted Suicide and Euthanasia, indicates “all human beings are intrinsically valuable”, adding that “the intentional taking of human life by private persons is always wrong” – an assertion many have taken as indicative of his position on abortion.
In his most high-profile decision, Hobby Lobby Stores, Inc v Sebelius, Gorsuch argued that the owners of the multibillion dollar craft store did not need to comply with a provision of Obama’s healthcare law requiring employers to offer birth control to female employees because it violated their religious beliefs. The decision was upheld five to four by the supreme court.
‘There’s enough blame to go around’
The confirmation of Neil Gorsuch on Friday was the denouement of an extraordinary 14-month drama that played out over the course of the 2016 presidential campaign and into early months of Trump’s presidency.
It began with the death of Antonin Scalia in February 2016. Senate Republicans gambled that a lifetime supreme court appointment would mobilize their voters in an unpredictable election year.
They refused to even grant a hearing to Barack Obama’s nominee, Merrick Garland. During an election year, they argued, voters should decide who gets to fill the vacancy on the supreme court. Trump won the election, and Senate Republicans held onto their majority.
The blame game reached fever pitch in the run-up to Friday’s vote. Republicans blamed Democrats for firing the first salvo in the “judicial war” more than a decade ago, when they attempted to block nominees under George W Bush. McConnell argued that Democrats forced his hand when they mounted an “unprecedented partisan filibuster” against a qualified nominee.
Democrats, in turn, blamed Republicans for escalating the fight by refusing to grant Obama’s supreme court nominee a hearing, which some lawmakers have called the “filibuster of all filibusters”.
Trump chose Gorsuch from a list of justices vetted by conservative legal groups. Democrats vowed to filibuster what some openly called a “stolen seat”.
During Gorsuch’s hearing, Democrats sought to portray Gorsuch as a callous ally of corporate interests who is “outside the mainstream” and cannot be trusted to stand up to the president who nominated him.
In one instance, Democratic senators hammered him over a case in which he ruled that the company was justified in firing a truck driver who abandoned the cargo to seek safety after starting to lose feeling in his extremities while waiting for help in subzero temperatures. The majority opinion found the company was not justified in firing the driver, but Gorsuch wrote that the employee was in the wrong.
Republicans described Gorsuch as a brilliant legal scholar whose plain qualifications were being unfairly scrutinized by Democrats.
The more than 20 hours of questioning produced some fireworks. But ultimately the hearing concluded without exposing any real stumbling blocks to his confirmation.
The hearing ended on a humorous note with a question from Louisiana senator John Kennedy.
“You’ve never been to Russia, have you?” he asked. Gorsuch laughed. “I’ve never been to Russia.”
Ahead of the vote, Democratic leader Chuck Schumer called for a delay in Gorsuch’s confirmation until there is clarity in the FBI’s ongoing investigation into potential ties between Trump campaign associates and Russia. He also urged Republicans to pull Gorsuch and find a nominee who would earn the support of 60 senators, enough to overcome a filibuster.
In the end, Democrats and Republicans each played their part in the carefully scripted mutual destruction.
To muted fanfare on Thursday, Democrats mounted a filibuster against what some senators openly called a “stolen seat”. In response, Republicans deployed the so-called “nuclear option”, a vote to end the filibuster for supreme court nomination that changes Senate precedent for how justices are confirmed to the nation’s highest judicial branch.
In the days and hours before the vote, Republican and Democratic senators stood behind the lectern on the chamber floor to lament the entrenched partisanship that led to the historic rules change.
“Nobody has clean hands completely on this,” Senator Lindsey Graham, a Republican from South Carolina, conceded in a floor speech on Thursday. In 2005, Graham joined a bipartisan group of senators to preserve the filibuster, but on Thursday, he joined Republicans in killing it.
“There’s enough blame to go around on both sides,” he said.