According to The Hill, under the traditional rules of confirmation of Supreme Court Justices, Judge Neil Gorsuch has enough “no” votes to force the Senate to change the rules of nomination if they want Gorusch to sit on the SCOTUS bench:
Senate Democrats have clinched enough support to block Neil Gorsuch’s nomination to the Supreme Court, setting up a “nuclear” showdown over Senate rules later this week.
Sen. Chris Coons (D-Del.) announced on Monday that he will oppose President Trump’s pick on a procedural vote where he will need the support of eight Democrats to cross a 60-vote threshold to end debate on Gorsuch. Coons is the 41st Democrat to back the filibuster.
“Throughout this process, I have kept an open mind. … I have decided that I will not support Judge Grouch’s nomination in the Judiciary Committee meeting today,” Coons said.
“I am not ready to end debate on this issue. So I will be voting against cloture,” Coons said, absent a deal to avoid the nuclear option.
Unless one of the 41 Democrats changes their vote, the filibuster of Gorsuch will be sustained in a vote later this week.
If you take a look at the credentials of Judge Gorsuch, historical precedent, and recent history, the opposition to the Gorsuch nomination is beyond laughable – it is downright obstructionist. And it seems they are only standing in opposition because President Trump nominated the man instead of President Cruz, or Bush, or Obama, or even Clinton.
To understand this, first you need to understand Judge Gorsuch himself. He was nominated to the Tenth Circuit Court of Appeals in 2006 by then-President George W. Bush. According to both Wikipedia and The Washington Free Beacon, Gorsuch was confirmed by a “unanimous” voice vote in the US Senate, which of course included many of the same Democratic Senators voting against him now:
At the time, Gorsuch had been nominated by former President George W. Bush to serve on the 10th Circuit Court and was approved by a voice vote in the Senate–which included 45 Democrats.
Current Democratic senators who voted for his confirmation at the time include Minority Leader Chuck Schumer (N.Y.), Democratic Whip Dick Durbin (Ill.), and ranking member of the Senate Judiciary Committee Patrick Leahy (Vt.).
Many other notable former Senate Democrats voted to confirm Gorsuch back in 2006. Former Massachusetts Sen. and Secretary of State John Kerry was listed as voting in favor of Gorsuch, as was Hillary Clinton and former Vice President and Sen. Joe Biden.
Gorsuch’s Harvard Law School classmate and eventual president, Barrack Obama, also voted to support Gorsuch’s nomination to the 10th Circuit Court.
Every single one of these Senators voted to confirm Neil Gorsuch in 2006. pic.twitter.com/qBy7MGo4UG
— Andrew Mullins (@AndrewWMullins) February 1, 2017
NOTEWORTHY: #NeilGorsuch unanimously passed the Senate by voice-vote in 2006, w/ support from Joe Biden, Hillary Clinton, Schumer & Obama
— Sen. James Lankford (@SenatorLankford) February 1, 2017
So, the same Democrats who confirmed Gorsuch ten years ago when he was nominated by President Bush, are now shilling against him. What changed between now and then, besides the man nominating him?
If you turn to historical precedent, you would expect Democrats to complain that “well, the Republicans did it to Merrick Garland, why is it any different when the Democrats do it to Neil Gorsuch?” Which would absolutely be true… except the Republicans did no such thing to Sonia Sotomayor and Elena Kagan, both Obama nominees who were easily confirmed by the Senate.
And perhaps the only reason Garland’s nomination was stalled was because of the upcoming election. There exists a historical precedent of Presidents not nominating judges to the Supreme court in an election year. The last one to try was Lyndon Johnson’s nomination of Fortas/Thornberry… who ultimately had to withdraw the nomination due to heavy opposition. Even then-Senator Joe Biden stated in 1992 that George H.W. Bush should not even bother trying to appoint a nominee until after the Presidential election that year:
As a senator more than two decades ago, Vice President Joseph R. Biden Jr. argued that President George Bush should delay filling a Supreme Court vacancy, should one arise, until the presidential election was over, and that it was “essential” that the Senate refuse to confirm a nominee to the court until then.
Mr. Biden’s words, though uttered long ago, are a direct contradiction to President Obama’s position in the battle over naming a successor to Justice Antonin Scalia.
Mr. Obama has said it is his constitutional responsibility to name a successor to Justice Scalia, who died Feb. 13 at the age of 79. The president has reacted with incredulity to the suggestion by several Republican presidential candidates and senators, including Senator Mitch McConnell of Kentucky, the majority leader, that the decision should wait until after Mr. Obama has left office.
“Historically, this has not been viewed as a question,” Mr. Obama said last week. “There’s no unwritten law that says that it can only be done on off years — that’s not in the constitutional text.”
But in a speech on the Senate floor in June 1992, Mr. Biden, then the chairman of the Judiciary Committee, said there should be a different standard for a Supreme Court vacancy “that would occur in the full throes of an election year.” The president should follow the example of “a majority of his predecessors” and delay naming a replacement, Mr. Biden said. If he goes forward before then, the Senate should wait to consider the nomination.
Had Hillary won the election, Garland likely would have been re-nominated, and likely would have cruised to victory. For the record, as much as I can’t stand Garland’s judicial record, especially when it comes to the 2nd amendment. But he is a qualified judge who likely would have been difficult to resist. The same objections to Garland apply equally if not more to Sotomayor and Kagan, and they were still easily confirmed. Why is Gorsuch all of a sudden so different, especially considering his unanimous confirmation as appelate judge?
I almost forgot… it was that guy who nominated him, wasn’t it? Must be, if you look at what the National Review has to say about it:
But Supreme Court nominations exist in a gray area, and the importance and permanence of Supreme Court decisions drives each side to disregard norms and act to the greatest extent of its power. Lacking, for now, a workable mechanism to compel both sides to play by the same rules, there is only politics and tradition.
That tradition shows that election-year nominations really are different. Senate Republicans, in stopping the Garland nomination, may have used different tools than past Senate majorities, but they acted in accordance with the dominant Senate tradition in election-year nominations since 1828, and did not “steal” a Supreme Court seat. If Democrats want to break the process further by filibustering Gorsuch, they should be denied the fig leaf of claiming that the Garland precedent supports such a step.
Notably, the Democratic party is the one doing the obstructing, when it comes to Supreme Court nominees. With the exception of Garland and the LBJ nomination, no SCOTUS nominee by a Democratic president was rejected or withdrawn at all since before 1900.
So there’s really nothing in recent history, historical precedent, or the credentials of the nominee to oppose Gorsuch. Republicans certainly did not such thing to Sotomayor or Kagan, despite many things that could have easily held them up. What could possibly be the liberal rationale? Why not take a look at HuffPo, a solid liberal rag of actual “fake news”, to lay it out plain and simple:
1. A vote for Gorsuch gives Trump a mandate
That’s it. It doesn’t matter who Trump nominates, the only thing that matters is that Trump is the one making the nomination. There is scarcely a more ridiculous thing to put at the top of your “list”, but then again, it is HuffPo.
All the wailing and gnashing of teeth won’t make a difference – as long as Trump is doing the nominating, Democrats will oppose the nomination. They have called him “literally Hitler” for so long, they have to oppose everything he does at this point. Unfortunately, that means the “nuclear option” of removing the Senate filibuster’s use against a SCOTUS nominee is going to be their only way forward.
Its an awful way forward that will be detrimental to our system of checks and balances going forward. But what other choice is there, beyond leaving one of the SCOTUS justice seats empty indefinitely? What has possibly gone wrong in our system, that the rules need to be changed just to put a qualified judge on the bench that has already be “approved” by the same politicians opposing him now?