President Trump has nominated Neil Gorsuch to the Supreme Court. What lies ahead on Gorsuch’s path to sit on the high court?
To become the ninth justice, Gorsuch must be confirmed by the Senate. Traditionally, nominees take weeks meeting individually with any senator who requests a meeting. After that, the Senate Judiciary Committee will hold hearings.
Judiciary Committee hearings have become “must see TV” for political junkies over the past few decades. This is a chance for senators to ask questions about a judge’s past rulings, his or her judicial philosophy, and anything else that a senator desires. A nominee may or may not answer these questions directly. For instance, it is a general practice for nominees to refuse to answer any questions about how he or she will rule on certain issues.
The committee hearings may last weeks. Once this step is completed, the committee will then vote on the nominee. A favorable vote will send that nominee to the full Senate floor. As has been the case with many recent nominees, we can probably expect that there will be something of a partisan divide when the Judiciary Committee votes. It is likely that every Republican will vote in favor of Gorsuch. Many, perhaps the majority, of Democratic committee members are likely to oppose him.
The real political drama will begin when the full Senate considers Gorsuch’s nomination. Currently, Senate rules allow a minority of senators to filibuster (or debate without a time limit) a Supreme Court nominee. The only way to stop this debate and proceed to a vote on the nominee is a successful cloture vote, which takes 60 senators to approve. Prior to 2013, senators could filibuster any judicial nominee. Harry Reid, who was the Democratic majority leader at the time, ended that practice.
Some Democratic senators have already indicated that they intend to filibuster Gorsuch’s nomination. One of their main complaints is that the Republican majority did not even schedule a committee hearing when President Obama nominated Merrick Garland for this position last year. They contend that the seat is “stolen” and should not be filled by President Trump. An actual filibuster attempt against a Supreme Court nominee has rarely been attempted, however.
If 40 of these senators engage in a filibuster, then Mitch McConnell, the Republican majority leader, could engineer a change in Senate rules to eliminate the filibuster option for Supreme Court nominees. Sen. McConnell has long been wary of changing Senate rules, and he has defended the filibuster in the past. But in the face of a filibuster over Gorsuch, he may expand on the precedent set by Harry Reid in 2013.
Some Senate Democrats are also wary of ending the filibuster. There are likely to be some senators who will vote against Gorsuch but who will not support a filibuster. In that instance, we would see at least 60 votes to end debate on the Gorsuch nomination, but fewer votes to approve Gorsuch to the Supreme Court. Given that there are 52 Republicans in the Senate, approval of Gorsuch is almost assured. The real question is how many Democrats will join the Republicans in voting for him.
Do you think that Senate Democrats should filibuster Gorsuch’s nomination?