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HP+P Reviews the Impact of Judge Gorsuch’s Nomination

President Donald Trump is acting swiftly on promises he made during the campaign.

  • The 12-nation Transpacific Partnership (TPP)? It’s now 11 after President Trump pulled the United States out.
  • The border wall? The President set the wheels in motion to begin construction this year.
  • The arrival of refugees into the United States? The President signed an executive order, currently mired in litigation, to keep refugees from entering the country for 120 days and immigrants from seven predominantly Muslim nations out for 90 days.

On these and other issues, the President acted quickly, and without Congress or even his Cabinet, to demonstrate his Administration was one of action, all the while appealing to a base expecting him to shake-up Washington.  There is one item on his short-term agenda, however, where President Trump cannot act alone: The nomination and confirmation of Neil Gorsuch to fill the Supreme Court seat left vacant by the death of Antonin Scalia last year.  To get Judge Gorsuch over the finish line, President Trump will need the “advice and consent” of the U.S. Senate.

“Nuclear Option”

Senate Democrats are threatening to filibuster the President’s nominee, requiring 60 votes to end the filibuster and move to confirmation.  With only a 52-48 majority in the Senate, Republican leaders are nonetheless hopeful they can enlist enough Democratic Senators from red states that went with Donald Trump in the election particularly those facing tough re-elections in 2018 to get to 60 votes.   Should Senate Republicans fail to get to 60, Majority Leader Mitch McConnell (R-KY) could adopt the so-called “nuclear option” and quash the filibuster for Supreme Court nominees.

Senate Democrats first detonated the nuclear option in 2013, when they abandoned the filibuster for most judicial and executive-branch nominees.  At that time, then-Majority Leader Harry Reid (D-NV) left intact the 60-vote filibuster requirement for Supreme Court nominees.  But the nuclear precedent was set and McConnell can now change the rules for Supreme Court nominations with a simple 51-vote majority.

While McConnell is mum on his views about any rule change – his preference remains to enlist enough Democrats to get to 60 votes – he is also guaranteeing that the President’s nominee will be confirmed, a not-so-veiled threat that he will change the rules if need be.  In other words, absent sufficient bipartisan opposition to the nomination, there is not much Senate Democrats can do to stop Judge Gorsuch’s confirmation.  But Senate Democrats can use this nomination to make mischief, impede progress on other Executive Branch nominations and those elements of President Trump’s agenda that require congressional approval, and otherwise grind Congress’ legislative wheels to a halt.

Next 100 Days

It is no surprise that Democrats in the Senate, and even left-of-center stakeholder groups, are gearing up for a hotly contested fight over this nomination.  There remains a powerful and lingering resentment over the way McConnell declared Merrick Garland’s 2016 nomination dead on arrival.  To many Democrats, McConnell’s high-stakes and ultimately successful gambit violated constitutional norms and decades of Senate precedent on the treatment of a president’s Supreme Court nominee.  That McConnell refused to even grant Garland a hearing continues to be salt on an open wound for Senate Democrats.

Against this backdrop, Senate Democrats are itching to prove their relevance.  Adding wind to their sails, many in the party’s base are looking for pay-back and urging Democratic leaders to oppose any Trump nominee on any grounds whatsoever.  In short, all the ingredients are in place for a highly-contested, partisan-charged nomination and confirmation process, the likes of which we have not seen since the Judge Robert Bork and Justice Clarence Thomas hearings of the late 1980s and early 1990s.

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With the Trump Administration valuing a need for speed, a contentious Supreme Court nomination will further downshift an already bogged down nominations process in the Senate.  The proceedings will tie up the Senate Judiciary Committee for a few weeks, if not months, and further delay the Senate’s confirmation of lower court judges, as well as U.S. Attorneys and other key Justice Department posts, many of whom have responsibility for implementing the President’s executive orders on sanctuary cities, travel bans, and other immigration enforcement matters.

But it is not just federal court and Justice Department nominees who will be impacted.  With such a slim majority in the Senate, the President will need a handful of Senate Democrats to support his legislative agenda.  Yet the collateral damage from an acrimonious Supreme Court nomination process may well derail President Trump’s ambitions this year, including his desire to repeal-and-replace Obamacare, enact tax reform, pass a supplemental appropriations bill to build a border wall and invest in national defense, and even pass an infrastructure spending package that many Democrats want.  Supreme Court nominations have a way of testing whether Congress can walk and chew gum at the same time, and we expect the nomination of Judge Gorsuch to affect and delay Congress’ other work through the spring.

The nomination of Judge Gorsuch will certainly raise the rancor in Congress, but the real action may well take place outside the halls of Congress.  In fact, the scale and scope of public opposition to Judge Gorsuch’s nomination could be broader and deeper than anything we have ever seen.  The women’s marches following President Trump’s inauguration and the protests in response to the President’s travel ban may only be a prelude to a much larger political movement that mobilizes in opposition not just to Judge Gorsuch’s nomination, but to President Trump’s agenda more broadly.

In short, hang on to your pocket constitutions.  We are all in for an interesting and unprecedented ride.

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