Supreme Court Nominee Neil Gorsuch — How Worried Should We Be?


FEBRUARY 1, 2017

Photo: AP

With showmanship that stopped just shy of including dancing Miss Universe contestants, President Trump on Tuesday unveiled his first pick to the U.S. Supreme Court, Judge Neil Gorsuch, a 49 year-old jurist from Colorado, in a prime-time extravaganza.  If confirmed, Judge Gorsuch would fill the seat of the late Justice Antonin Scalia, who died nearly one year ago.

The nomination of Judge Gorsuch, who is considered by court-watchers to be even more conservative than Justice Scalia, was hailed by Republicans who see this move as an important first step in remaking the Supreme Court to become even more right-wing.  On the other hand, the President’s move was condemned by Democrats, who still feel that this seat was stolen from them by the GOP, who refused for nearly a year to give President Obama’s nominee to fill the seat, Judge Merrick Garland, even the courtesy of a hearing.

As Judge Gorsuch made the meet-and-greet rounds on Capitol Hill on Wednesday, strategists on both sides of the aisle began to determine the shrewdest moves they can take in dealing with the nomination.

Please indulge me if I get a little politically wonky, but here’s how the process is going to work.  Because a Supreme Court judgeship is a lifetime appointment and therefore has higher stakes, Senate rules require 60 votes in order to confirm a judge.  The GOP only has 52 Senators, a majority, but 8 votes shy of the 60 required, so they need 8 Democrats who are willing to defect in order to get Judge Gorsuch confirmed.  Looks bad for him, right?

However, reports indicate that there may be as many as 7 Democratic Senators from red states who, anxious to retain their seats, may be willing to vote “aye” to please the folks back home. And if the GOP is just one vote short, there’s no telling what kind of backroom deals will be flying about to get that crucial eighth vote.

If the Republicans do fall short of the necessary vote count, they do have one other option — with the encouragement of President Trump, Sen. Majority Leader Mitch McConnell could “go nuclear,” which means that the GOP Senators may vote to change the rules to require only a majority of Senators, rather than the 60 needed now, to confirm Judge Gorsuch.  Such a move is called “blowing up the Senate” and is a step that Senators have avoided taking for decades, as that rule is one that differentiates the Senate from any other deliberative body.  But will there be enough Senators willing to sacrifice that hallowed tenet in order to get one guy through?  It’s a game of chicken with the highest judicial stakes possible.

Let’s presume for the sake of argument, Republicans get Gorsuch through and he takes his seat on the bench.  How worried should we be?  Setting aside what the Court could have been if Obama had managed to get Merrick Garland through, a Gorsuch addition would bring the Court back to where it was before Scalia died.  With the new Justice embracing the same right-wing viewpoint as Scalia, Gorsuch will likely vote the way Scalia would have, so that’s a wash.  But the judge does have one particular pet topic — religious freedom.

If there’s one case for which Judge Gorsuch is best known, it is his ruling in favor of Hobby Lobby, the chain of arts and crafts stores which gave the for-profit business the same rights of religious freedom that a human being can claim.  Although he has never directly ruled in a case involving LGBT rights or freedom of choice, one can safely presume that his history of limiting rights on social issues based on religious freedom grounds would likely apply to gay rights and abortion as well.  And God knows what else.

The Senate vote on Judge Gorsuch’s confirmation is expected to happen mid to late-March, and make no mistake, the next six weeks are likely to be ugly — very very ugly.  Until that time, however, there is one positive thing that we all can do — pray for the health of Justice Ruth Bader Ginsburg.