How the Confirmation of Justice Neil Gorsuch will Alter the Supreme Court

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 5, 2017

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Supreme CourtAfter a tense partisan battle, the Senate has confirmed Judge Neil M. Gorsuch to the Supreme Court, filling a year-long vacancy left when Justice Antonin Scalia who died in February of 2016.  The nomination process came at a stiff cost, however, as it further divided a Senate which has been at odds over Scalia’s replacement since last February, and changed the way Supreme Court Justices will be confirmed.

Judge Gorsuch Confirmation Divides Senate

In a confirmation vote split directly down party lines, Gorsuch was approved by a Senate vote of 54 – 45, concluding a year-long partisan battle which began last March when former President Obama nominated Judge Merrick Garland as an immediate replacement for Justice Scalia. 

Before the ink was dry on the newspapers announcing Garland’s appointment, Senate majority leader Mitch McConnell (R – Kentucky) defied years of conventional confirmation decorum by saying that he would not even bring the matter up for a vote until a new administration took office in January, 2017.

True to his word, McConnell led the Senate Republicans on a bitter campaign to ensure Obama would not have a third nominee to the Supreme Court, making the issue one of many hot topics during a tense 2016 election cycle. 

With the election of President Trump, McConnell was well-positioned to see his unconventional approach to making sure the vacancy was filled by a Conservative Justice succeed, however, the Senate Democrats, still stinging from what they viewed as a stolen appointment, vowed to keep Gorsuch off the court with a filibuster which would stymie Trump’s nominee.

In response to these threats, McConnell and the Republican led Senate changed the face of Supreme Court confirmations by lowering the threshold for needed Senate confirmation votes from 2/3 majority to simply majority.  Under the lesser standards for appointee confirmation, Gorsuch was approved by the Senate and sworn into the bench as the 113th Supreme Court Justice.

Lasting Impact of the Gorsuch Nomination

As a Conservative jurist, Gorsuch will not fundamentally alter the composition of the Supreme Court as a replacement for Justice Scalia, however, his confirmation will leave an immediate and lasting impact on the politics of judicial appointment. 

In order to lower the threshold of required Senate votes from 2/3 to simple majority, McConnell and the Senate Republicans utilized a procedural rule known as the “nuclear option” which effectively negates the effect of any future filibusters used by the minority party to block Supreme Court appointments.  This new procedure will remain intact for future SCOTUS appointments unless the Senate votes to again raise the bar of judicial confirmation back to 2/3 majority vote.

Use of the nuclear option is not without precedent — Democrats used the same process during President Obama’s second term to counter mounting Republican opposition to several lower-level federal judges — however, its use for a Supreme Court confirmation is a sign of the extreme partisan divide under which the Senate operates. 

It is unclear when the change in SCOTUS confirmation protocol will again come into play, but it is not hard to imagine another Trump appointee with several Justices aging and considering retirement.  With Senatorial elections less than two years away, there is little doubt that political maneuvering and campaigning will once again feature both sides focusing on the importance of controlling the Senate in order to dictate the composition of the Supreme Court.

Gorsuch’s Profile as a Supreme Court Justice

Somewhat lost in his dramatic confirmation process are the qualifications of the man, but Justice Gorsuch is not someone to overlook.  Gorsuch, 49, is a product of Columbia, Harvard Law, and Oxford (where he received a PhD for research on assisted suicide and euthanasia), and has clerked for two Supreme Court justices — notably current swing vote Justice Anthony Kennedy, whom Gorsuch considers a mentor.  Gorsuch is the only Protestant on the Supreme Court, and is widely considered to be a conservative jurist in the Scalia mold.

Gorsuch has served on the U.S. Court of Appeals for the Tenth Circuit since 2006, and he has established himself as a proponent of religious freedom and supporter of business interests.  Notably, Justice Gorsuch stands against giving judicial deference to agency decisions, believing the task of interpreting Congressional statutes falls on the courts rather than executive agencies — a position that could put him at odds with a President who has already shown his willingness to use agency rules to unilaterally influence policy independent of Congressional intervention. 

Justice Gorsuch will be tested quickly, as critical cases featuring LGBT rights, gun ownership, and religious freedom are working their way through the Supreme Court pipeline and will likely be heard early in his tenure.

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