photo source: Blogs – Education Week
This article was originally published in The Westerner on March 2, 2017
Judge Neil Gorsuch has been nominated by President Trump to the Supreme Court of the United States. The announcement came on January 31, showing the President planned to make good on his promise to nominate a conservative judge.
Gorsuch, who previously served as a federal appellate judge on the United States Court of Appeals for the 10th Circuit, is considered to be a highly qualified choice, and not one driven by ideology.
“Gorsuch doesn’t participate in partisan politics; he doesn’t come from that kind of background,” says Tim Vercellotti, Professor of Political Science and Director of the Polling Institute at Western New England University.
With very little debate over Gorsuch’s qualifications for the Supreme Court, there has been little controversy so far surrounding the nomination.
“Gorsuch is very much cut from the same cloth as Justice Scalia,” says John Baick, Professor of History at Western New England University. Baick, who studied at Columbia the same time as Gorsuch, knows the judge has a very good reputation in the legal community.
Gorsuch’s nomination comes almost a year after Justice Antonin Scalia died on February 13, 2016. This left President Obama with an opportunity to make one final nomination in his last months in office.
President Obama’s nominee, Judge Merrick Garland, was blocked by the Senate. Republicans believed that it was too late in his term for the President to make a nomination, and went forward without confirming Garland.
“Although it was not technically illegal, it was a staggering violation of tradition and etiquette, and is very bad precedent moving forward,” Baick believes.
The Professor of History added that though there was no historical precedent for such a move by the Senate, it was not a “Constitutional crisis.”
With Garland’s nomination expiring at the end of the 114th Congress, it allowed President Trump upon winning the November election, the opportunity to fill the seat that had remained vacant since Justice Scalia’s death.
“He reshaped conservative interpretations of the law with his focus on the so-called ‘originalism,’ the idea that the Constitution should be interpreted through the intentions of those who drafted it, the ‘Founding Fathers,’” Baick said of Scalia, noting that Gorsuch will bring the same belief back to the Supreme Court.
Should Gorsuch be confirmed by the Senate, it seems that the Supreme Court, at least for now, will go back to the way it was before Justice Scalia’s death: four conservatives, four moderate-liberal, and one swing vote in Justice Kennedy.
It appears Gorsuch would be on the Supreme Court for a while as well, since at the age of 49, he is one of only twelve since 1900 who have been nominated to the Supreme Court under the age of 50.
“He [Gorsuch] could be on the Supreme Court for four decades,” said Vercellotti, noting that in addition to qualifications and conservative leaning, age was an important factor in President Trump’s decision to nominate Gorsuch.
And with other Justices on the Supreme Court aging, it is possible President Trump will be able to make more nominations in the future, reshaping the nation’s highest court for generations.
It is with this in mind that Senate Democrats, many of whom are already upset about the Garland incident, will have to consider if they want to filibuster Gorsuch’s nomination or not.
Under current Senate rules a filibuster would prevent the confirmation of Gorsuch for a time. Senate Minority Leader Chuck Schumer (D-NY) has indicated this is a possibility.
Vercellotti explained that because the filibuster is not a part of the Constitution, the Senate can change this rule with a simple majority vote, which Republicans would be able to do if Senate Majority Leader Mitch McConnell (R-KY) is on board.
This sets up a potentially problematic partisan situation in the Senate – one which could harm Democrats and Republicans who may want to filibuster in the future. Of course, another line of thinking says that Gorsuch will be confirmed to preserve the status quo, and perhaps this political showdown may be saved for a future nomination.
“Putting aside questions of whether this is a ‘stolen’ seat or not, it is hard to deny that Gorsuch is qualified to serve, and it is highly likely that more than a few Democrats will vote to confirm him,” Baick said.
The battle over the Supreme Court has lasted over a year, and yet is not over. The Senate Judiciary Committee is set to begin hearings on Gorsuch March 20, 2017.