As expected, Neil Gorsuch has been confirmed as the 113th Justice of the United States Supreme Court:
WASHINGTON — Judge Neil M. Gorsuch was confirmed by the Senate on Friday to become the 113th justice of the Supreme Court, capping a political brawl that lasted for more than a year and tested constitutional norms inside the Capitol’s fraying upper chamber.
The development was a signal triumph for President Trump, whose campaign last year rested in large part on his pledge to appoint another committed conservative to succeed Justice Antonin Scalia, who died in February 2016. However rocky the first months of his administration may have been, Mr. Trump now has a lasting legacy: Judge Gorsuch, 49, could serve on the court for 30 years or more.
Vice President Mike Pence presided over the final vote on Friday, a show of force for the White House on a day when his tiebreaking vote as president of the Senate was not necessary. The final tally was 54-45 in favor of confirmation.
Vice President Mike Pence presided over the final vote on Friday, a show of force for the White House on a day when his tiebreaking vote as president of the Senate was not necessary. The final tally was 54-45 in favor of confirmation.
The confirmation was also a vindication of the bare-knuckled strategy of Senate Republicans, who refused even to consider President Barack Obama’s Supreme Court pick, Judge Merrick B. Garland, saying the choice of the next justice should belong to the next president.
Yet the bruising confrontation has left the Senate a changed place. Friday’s vote was only possible after the Senate discarded longstanding rules meant to ensure mature deliberation and bipartisan cooperation in considering Supreme Court nominees. On Thursday, after Democrats waged a filibuster against Judge Gorsuch, denying him the 60 votes required to advance to a final vote, Republicans invoked the so-called nuclear option: lowering the threshold on Supreme Court nominations to a simple majority vote.
The confirmation saga did not help the reputation of the Supreme Court, either. The justices say politics plays no role in their work, but the public heard an unrelentingly different story over the last year, with politicians, pundits and well-financed outside groups insisting that a Democratic nominee would rule differently from a Republican one.
Judge Gorsuch possesses the credentials typical of the modern Supreme Court justice. He is a graduate of Columbia, Harvard and Oxford, served as a Supreme Court law clerk and worked as a lawyer at a prestigious Washington law firm and at the Justice Department. He joined the United States Court of Appeals for the 10th Circuit, in Denver, in 2006, where he was widely admired as a fine judicial stylist.
During 20 hours of questioning from senators during his confirmation hearings last month, Judge Gorsuch said almost nothing of substance. He presented himself as a folksy servant of neutral legal principles, and senators had little success in eliciting anything but canned answers.
But neither side harbored any doubts, based on the judge’s opinions, other writings and the president who nominated him, that Judge Gorsuch would be a reliable conservative committed to following the original understanding of those who drafted and ratified the Constitution.
A week from Monday, he will put on his robes, follow the court’s custom of shaking hands with each of his colleagues and ascend to the Supreme Court bench to hear his first arguments. A ninth chair, absent since the spring of 2016, will be waiting for him.
He is not a stranger to the court, having served as a law clerk in 1993 and 1994 to Justice Byron R. White, who died in 2002, and Justice Anthony M. Kennedy, who continues to hold the crucial vote in many closely divided cases.
He will be the first former Supreme Court clerk to serve alongside a former boss. And he may recall Justice White’s observation about how transformative a new addition to the bench can be. “Every time a new justice comes to the Supreme Court,” Justice White liked to say, “it’s a different court.”
The court has been short-handed since Justice Scalia’s death on Feb. 13, 2016. Within hours, the Republican majority leader, Senator Mitch McConnell of Kentucky, said the seat would not be filled until a new administration came to power.
It was perhaps the most audacious escalation in a series of precedent-busting Senate skirmishes in recent decades — tracing from Democratic opposition to Judge Robert H. Bork and Justice Clarence Thomas to the wide-scale use of the filibuster by Republicans under Mr. Obama. Republicans have pinned blame squarely on their opponents, citing Democratic blockades of judicial nominees under President George W. Bush and a rule change in 2013, when Democrats controlled the Senate, barring the filibuster for lower judgeships and executive branch nominees.
Shortly after the Senate vote, the Supreme Court’s public information office announced in a press release that Justice Gorsuch will be officially sworn-in by Chief Justice Roberts in a private ceremony at the Court on Monday morning, which will be followed by a public ceremony later in the day where Gorsuch will be sworn in by Associate Justice Anthony Kennedy. At that point, the Supreme Court will be back to its full compliment of nine Justices for the first time since Justice Scalia died on February 13, 2016. Additionally, as I’ve noted before, Gorsuch will take the bench in time to participate in the final round of oral argument for the Court’s current term, during which the Court will hear argument in a total of thirteen cases, although none of them appear at first glance to be ones that would ordinarily be considered “blockbuster” cases for the current term. Gorsuch will also begin participating in the Court’s weekly conferences at which they consider pending cases for appeal, meaning that he could prove to provide the decisive fourth vote that will decide whether a particular case is accepted for appeal or not. At least as far as the remainder of this term goes, though, Gorsuch’s impact is likely to be minimal since he won’t be eligible to participate in cases that have already been argued or write opinions in any of those cases. This means he’s likely to be assigned at least a few of the cases that will be heard later this month if only to distribute the workload more evenly among the Justices, who have had to deal with the lack of a ninth member for the better part of a year now. After that, Gorsuch will have the summer break to prepare for the new term that starts in October during which the Court is likely to have to decide whether to take up cases dealing with everything from Donald Trump’s Muslim travel ban to the rights of transgender students in public schools.
Soon-to-be Justice Gorsuch is currently 49 years old and will turn 50 over the summer break, making him the youngest Justice on the Court. At this point, it’s possible that he will be on the Court until well into the middle of the 21st Century. As I’ve noted though, his confirmation is not likely to have a significant impact on the general ideological balance of the Court as it existed on the day Justice Scalia died. Like Scalia, Gorsuch has said he considered himself a “textualist” rather than an “originalist,” meaning that he looks primarily to the text of the statute(s) or Constitutional provision(s) at issue in a case as they apply to the facts on the record, rather than something outside that record that may or may not explain what the drafter say they meant in drafting those provisions. That’s not to say that textualists don’t consult these outside sources, of course, but if there’s a conflict between the text and the outside source, then the text must prevail. This doesn’t mean that Gorsuch will always rule exactly as Scalia did, of course, but it could mean that he will often find himself in disagreement with Justices Alito and Thomas, who are the true “originalists” on the Court at the present time.
In any case, after a prolonged period in which the Court was short a seat and a highly partisan Senate battle, we have a new member of the Supreme Court. Congratulations Justice Gorsuch, and good luck!
