This week, Congress will hold confirmation hearings for Neil Gorsuch, the federal appeals judge President Trump has nominated to fill the vacancy on the Supreme Court created by Justice Scalia’s death last February. The president has the authority to nominate a justice, but that person will only be appointed with the “Advice and Consent of the Senate,” as the Constitution declares. What that means on a practical level is that the Senate Judiciary Committee holds hearings to determine whether the full Senate will have a chance to vote on the nominee.
The committee is dominated by Republicans, featuring its chair Chuck Grassley of Iowa and conservative stalwarts Orrin Hatch (Utah) and Ted Cruz (Texas). Notably, some Republicans who have expressed displeasure with President Trump serve on it too: Lindsey Graham of South Carolina and Ben Sasse of Nebraska. Democrats on the committee include New Englanders Sheldon Whitehouse (Rhode Island) and Richard Blumenthal (Connecticut). Assuming Gorsuch gets out of committee, he will face a vote in the full Senate. A Supreme Court nominee needs a supermajority — 60 votes — to achieve confirmation. With 52 Republicans in the Senate, a democratic filibuster can essentially block Gorsuch.
What should we expect during the hearings? Judge Gorsuch has a paper trail of judicial opinions from his tenure on the bench of the Tenth Circuit Court of Appeals in Denver. This record provides opponents and proponents alike with ample fodder for questioning this week. I foresee fireworks — heated questioning of Gorsuch from the Democrats on the committee over several days. Democrats will probably focus on two aspects of Judge Gorsuch’s record.
First, Gorsuch may be attacked for his stance on social issues. His opinions have revealed strong support for religious freedom, a sign that he almost surely will oppose the right to abortion. In a prominent case several years ago, he sided in favor of a faith-based company named Hobby Lobby that sought an exemption from the Affordable Care Act’s mandate to grant contraceptive coverage to employees. The Supreme Court ultimately agreed with the company’s position in a 2014 opinion. Second, Democrats have recently indicated they may interrogate Judge Gorsuch about a series of opinions that seem to exalt corporate interests over the “little guy.”
My hunch is that Judge Gorsuch will be confirmed. Chuck Schumer, the Democratic minority leader, has vowed that his party will take a firm stand against Gorsuch in part as a matter of principle and in part as payback for Republicans’ obstructionism last year in denying President Obama’s Supreme Court nominee, Merrick Garland, a vote. Yet, while political considerations may augur in favor of resistance, there are pragmatic reasons against a filibuster. For one thing, if Democrats stonewall too much, Senate Republicans have the numbers to deploy the so-called “nuclear option” to abolish the supermajority rule and allow confirmation by a simple majority vote. This would create a bad precedent for Supreme Court nominees going forward. Also, even if Democrats were to block Gorsuch, what about the second or third nominee? There is a possibility, perhaps a strong one, that the next nominee might be even more hostile to progressive values and ideas.