This week’s Supreme Court confirmation hearings for Tenth Circuit Court of Appeals judge Neil Gorsuch will more than like be dominated by dueling narratives representing very different ideas of the threshold he should have to cross to ascend to SCOTUS.
On and beyond the Judiciary Committee, Republicans will try to depict Gorsuch as a slam-dunk selection that only a radicalized Democratic Party terrified by its lefty-lefty base could possibly oppose. We will hear many citations of the unanimous votes with which potential justices, including Gorsuch’s role model Antonin Scalia, was confirmed back in those golden days before liberals ruined that great tradition in 1987 by keeping Robert Bork off the Court. Gorsuch’s “originalist” views about constitutional interpretation, a controversial approach, will be described by his defenders as the legal equivalent of common sense, which again, only a lefty radical who despises constitutional limitations on Big Government could possibly oppose.
Meanwhile, Democrats will make a lot of noise about the GOP’s refusal to give Barack Obama’s nominee for the same seat, Merrick Garland, even a single hearing. Some in the Senate will say that’s enough to compel a vote against Gorsuch as a matter of principle, regardless of any case that can be made for Trump’s choice. And others will use the hearings to raise concerns about the direction of the Roberts Court in the Trump Era, given the large array of critical issues that could soon come before SCOTUS, including some that were stalled last year due to a deadlocked Court awaiting Scalia’s replacement. In general Democrats will hold Gorsuch to a much higher standard than Republicans are likely to proffer, and even Democrats who intend to vote for his confirmation in the end may make a bit of a show of giving him a hard time.
Perhaps the most inflammatory aspect of the hearings will involve efforts to gauge Gorsuch’s attitude toward Executive branch excesses, which will give liberals and conservatives alike who have been alarmed by the president’s thinly veiled threats to the independence of the judiciary a chance to toss a few brushback pitches toward the White House. By most accounts, Gorsuch’s originalism and “natural-rights” beliefs are strong enough to make his protestations of independence from the political branches credible, and he’s probably deft enough to avoid saying anything that could set off the volatile man who appointed him.
The big wild card in this or any other SCOTUS confirmation hearing is the possible emergence of new information about the nominee’s record or private life. The letter to the Judiciary Committee from a woman who recently took a law school class taught by Gorsuch alleging he made comments about maternity leave that exhibited both sexism and excessive deference to corporate needs is the first such hand grenade rolled onto the floor in this particular confirmation. More could be on the way, and Gorsuch is at particular risk for comments showing insensitivity to women’s rights, given his prominence in cases carving out “religious liberty” rights for conservative Christians refusing to comply with anti-discrimination laws, and his presumed hostility to constitutionally protected reproductive rights. Democrats and possibly even a Republican or two who want to find an excuse for opposing Gorsuch could in theory seize on evidence of personal unsuitability in order to avoid the tougher questions surrounding his constitutional views.
If on the other hand Gorsuch’s generally positive reputation as a decent and fair-minded judge survives the hearings, some key strategic issues will remain for both parties. If Democrats can muster the 41 opposed votes necessary to filibuster Gorsuch, Republicans will almost surely exercise the so-called “nuclear option” to eliminate SCOTUS filibusters once and for all, extending the action taken by Senate Democrats in 2013 to allow for confirmation of Executive branch and non-SCOTUS judicial nominations by simple majority. Some Democrats would prefer to delay this sort of fraught confrontation to a future nomination (it is, after all, a second Trump appointment to SCOTUS that would really shift the Court to a position to the right of where it was when before Scalia’s death), since the odds of actually stopping this confirmation appear limited. Other observers, like my colleague Jonathan Chait, advise Democrats to enthusiastically help get rid of the SCOTUS filibuster because it is more of a threat to future Democratic presidents than it will be to Trump.
Either way, Gorsuch is very likely to be confirmed barring new revelations of extremism or pigginess, because of the hellish pressure on Senate Republicans to approve him. Donald Trump’s acceptance of the process that produced the Gorsuch nomination, which basically turned the choice over to the hyperconservative legal group the Federalist Society along with the hyperconservative policy group the Heritage Foundation, has been the glue that has kept the Republican Party more or less together through the trauma of the Trump party takeover. Now that Trump has kept his promise on a subject very near and dear to conservative ideologues who believe they have been repeatedly “burned” by past Republican presidents and their SCOTUS nominees, any Republican senator who threatens to gum up the works is going to face a campaign of demonization leading to a primary challenge. And any senator of either party with public or private concerns about Neil Gorsuch must deal with the high probability the next Trump choice would be, by any standard, worse.
