Neil Gorsuch Supreme Court nomination
After his nomination on January 31, 2017, Neil Gorsuch was confirmed by the Senate on April 7, 2017. Gorsuch, age 49 at confirmation, is the youngest sitting Supreme Court justice since Clarence Thomas. In February 2016, U.S. Supreme Court Associate Justice Antonin Scalia died, leaving a vacancy on the highest federal court in the United States. Article II of the U.S. Constitution requires the president to nominate justices to the Supreme Court, subject to the "advice and consent" of the United States Senate. President Barack Obama, a Democrat, nominated Merrick Garland to fill the vacancy. U.S. Senate majority leader Mitch McConnell, a Republican, arguing that the presidential election cycle having already commenced made the appointment of the next justice a political issue to be decided by voters, refused to bring the Garland nomination to the Senate floor for a vote. McConnell's action held the Supreme Court vacancy open through the end of President Obama's tenure.
On January 31, 2017, newly inaugurated President Donald Trump announced his selection of Judge Neil Gorsuch for the vacant position of Associate Justice, and transmitted this nomination to the Senate the following day. After hearings before the Senate Judiciary Committee, the nomination was sent to the Senate floor on April 4, 2017. When nominated, Gorsuch was serving as an active judge on the United States Court of Appeals for the Tenth Circuit, to which he had been appointed by President George W. Bush and confirmed without opposition in the Senate. Democratic Senators then proceeded to filibuster Gorsuch's nomination, after which Republicans invoked the "nuclear option", eliminating the filibuster with respect to Supreme Court nominees. On April 7, 2017, the Senate confirmed Gorsuch's nomination to the Supreme Court with a 54–45 vote, with three Democrats joining all the Republicans in attendance. Gorsuch took office in a private ceremony on April 7. On April 17, 2017, Gorsuch heard his first case as the 101st associate justice of the Court.
Death of Justice Antonin ScaliaEdit
In 1986, President Ronald Reagan nominated then D.C. Circuit Judge Antonin Scalia to the Supreme Court to fill the associate justice vacancy caused by the retirement of Chief Justice Burger and the appointment as Chief Justice of then-Associate Justice William H. Rehnquist. Scalia was unanimously confirmed by the Senate and became a part of the court's conservative bloc, often supporting originalist and textualist positions.
On February 13, 2016, Justice Scalia was found dead on a Texas ranch. Scalia's death marked only the second time in sixty years that a Supreme Court justice had died in office, the other being Chief Justice Rehnquist in 2005. Scalia's death was the seventh occasion since 1900 in which a seat on the Supreme Court of the United States was vacant during a year in which a presidential election was set to occur.
Nomination of Judge Merrick GarlandEdit
When Justice Scalia died, Democrat Barack Obama was serving as President, while the Republican Party held a 54–46 seat majority in the Senate. Because of the composition of the Supreme Court at the time of Scalia's death, and the belief that President Obama could replace Scalia with a much more liberal successor, some believed that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences. President Obama ultimately nominated Merrick Garland on March 16, 2016. The Republican-controlled Senate refused to consider Garland's nomination for 293 days, breaking precedent, until it expired when the 114th Congress adjourned in January 2017. The defeat of Garland's nomination left Scalia's seat vacant when President Trump took office in January 2017. Many Democrats reacted angrily to the Senate's refusal to consider Garland, with Senator Jeff Merkley (D-OR) describing the vacant seat as a "stolen seat". However, Republicans such as Iowa Senator Chuck Grassley argued that the Senate was within its rights to refuse to consider a nominee until the inauguration of a new U.S. President.
During the 2016 presidential campaign, while Garland remained before the Senate, Trump released two lists of potential nominees. On May 18, 2016, Trump released a short list of eleven judges for nomination to the Scalia vacancy.
In September 2016, Trump released a second list of ten possible nominees, this time including three minorities. Both lists were assembled by the Federalist Society and the Heritage Foundation. Leonard Leo of the Federalist Society played a major role in the creation of the second list, which included Gorsuch. After winning the presidential election, Trump and White House Counsel Don McGahn interviewed four individuals for the Supreme Court opening, all of whom had appeared on one of the two previously-released lists. The four individuals were federal appellate judges Tom Hardiman, Bill Pryor, and Neil Gorsuch, as well as federal district judge Amul Thapar. All four had been appointed to the federal bench by President George W. Bush. While Pryor had been seen by many as the early front-runner due to the backing of Attorney General Jeff Sessions, many evangelicals expressed resistance to him, and the final decision ultimately came down to Gorsuch or Hardiman. Hardiman had the support of Trump's sister, Judge Maryanne Trump Barry, but Trump instead chose to nominate Gorsuch.
According to The Washington Post, Trump talked about rescinding Gorsuch's nomination, venting angrily to advisers after his Supreme Court pick was critical of the president's escalating attacks on the federal judiciary in private meetings with legislators.
President Trump announced the nomination of Gorsuch on January 31, 2017. The nomination was formally transmitted to the Senate on February 1, 2017. His nomination was pending before the Senate Judiciary Committee. At age 49, Gorsuch would become the youngest sitting Supreme Court justice since Clarence Thomas. Having clerked for Anthony Kennedy, Gorsuch would also become the first Supreme Court Justice to have previously clerked for a Justice still sitting on the court.
In July 2006, Gorsuch's nomination to the United States Court of Appeals for the Tenth Circuit had been confirmed in the Senate by a unanimous voice vote. At the time of his nomination to the Supreme Court, Gorsuch was described as solidly conservative, but likely to be confirmed without much difficulty. Richard Primus of Politico described Gorsuch as "Scalia 2.0" due to ideological similarities, and a report prepared by Lee Epstein, Andrew Martin, and Kevin Quinn predicted that Gorsuch would be a "reliable conservative" similar to Scalia.
Gorsuch's nomination was first considered by the Senate Judiciary Committee, which holds hearings on all federal judicial nominations and decides whether or not to send nominations to the full Senate for a final confirmation vote. The committee consists of 11 Republican Senators and 9 Democratic Senators, and is chaired by Republican Chuck Grassley (R-IA). In February 2017, the committee requested the Justice Department to send all documents they had regarding Gorsuch's work in the George W. Bush administration. As of March 9, 2017[update], the Justice Department had turned over more than 144,000 pages of documents and, according to a White House spokesman, more than 220,000 pages of documents in total had been sent to the committee. Gorsuch's confirmation hearings started on March 20, 2017, and lasted four days. On April 3, the Judiciary Committee approved Gorsuch by in an 11–9 in a party-line vote.
On the first day of hearings, Senators largely used their opening statements to criticize each other, with Ranking Member Dianne Feinstein (D-CA) complaining of the "unprecedented treatment" of Judge Merrick Garland, while Colorado Senator Michael Bennet (D-CO) felt "two wrongs don't make a right", with Senator Ted Cruz (R-TX) insisting President Trump's nomination now carried "super-legitimacy".
Democratic Senators repeatedly criticized Gorsuch for dissenting in a case where the Tenth Circuit ruled in favor of a truck driver who, after waiting hours for relief, had finally abandoned his unheated truck and trailer in dangerously inclement conditions. Senator Dick Durbin (D-IL) told Gorsuch the weather was "not as cold as your dissent". Durbin also criticized the accuracy of his opinion in the Hobby Lobby case, where Gorsuch contended that contraception "destroys a fertilized egg," and that he had held the Religious Freedom Restoration Act included protection for corporations, rather than just individuals.
In his own 16-minute opening statement, Gorsuch repeated his belief that a judge who likes all his rulings is "probably a pretty bad judge", and noted that his extensive record included many examples where he ruled both for and against disadvantaged groups.
On the second day of hearings Gorsuch responded to questions by committee members. When Chairman Chuck Grassley (R-IA) asked Gorsuch if he would "have any trouble ruling against the president who appointed you", Gorsuch replied, no, and "that's a softball". Senator Cruz used his time to ask Gorsuch about The Hitchhiker's Guide to the Galaxy, basketball, and mutton busting. When asked by Senator Lindsey Graham (R-SC) how he would have reacted if during his interview at Trump Tower the President had asked him to vote against Roe v. Wade, Gorsuch replied "I would have walked out the door".
Democratic Senators continued to criticize Gorsuch on his dissent in the truck driver case, with Ranking Member Feinstein asking him "will you be for the little men" and Senator Al Franken (D-MN) telling the judge his position was "absurd", going on to say "I had a career in identifying absurdity" (in reference to his former career as a comedian). Senator Patrick Leahy (D-VT) used his time to praise Judge Garland, criticize those policies of President George W. Bush that Gorsuch had defended at the Justice Department, and to ask Gorsuch how he would rule in Washington v. Trump. He refused to comment on active litigation, explained that Justice Department lawyers must defend their client, but did say that Garland is "an outstanding judge" and that Gorsuch always reads his opinions with "special care".
On the third day of hearings Gorsuch continued to answer questions by committee members. Senator Orrin Hatch (R-UT) asked Gorsuch if "you think your writings reflect a knee-jerk attitude against common-sense regulations", to which the judge replied "no". In response to Senator Sheldon Whitehouse (D-RI)'s question of if the judge would be subject to agency capture by big business, Gorsuch replied "nobody will capture me". Franken laughed out loud after Senator Jeff Flake (R-AZ) asked Gorsuch if he had ever served on a jury; Gorsuch said he had. Flake then asked Gorsuch if he would rather fight "100 duck-sized horses or one horse-size duck", to which Gorsuch avoided giving a firm answer.
Senator Amy Klobuchar (D-MN) told Gorsuch he employed only "selective originalism".[clarification needed] He replied to a question by Ranking Member Feinstein on the Equal Protection Clause by saying, "no one is looking to return us to horse and buggy days" and that "it matters not a whit that some of the drafters of the Fourteenth Amendment were racists. Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That's what they wrote."
During Wednesday's hearings, the Supreme Court unanimously reversed the Tenth Circuit in an Individuals with Disabilities Education Act case Gorsuch had not been involved in, although in 2008 he had written for a unanimous panel applying the same circuit precedent. Still, Senate Minority Leader Charles Schumer (D-NY) said this demonstrated "a continued, troubling pattern of Judge Gorsuch deciding against everyday Americans - even children who require special assistance at school".
|Confirmation Hearing Witnesses for Neil Gorsuch|
|March 20||Michael Bennet, Senator (D-CO)||Introducer, home state U.S. Senator||Testimony.[a]|
|Cory Gardner, Senator (R-CO)||Introducer, home state U.S. Senator||Testimony.[b]|
|Neal Katyal, Former Acting Solicitor General (May 2010 – June 2011)||Introducer||Testimony.[c]|
|March 23||Nancy Scott Degan, Chair, American Bar Association Standing Committee on the Federal Judiciary||Congressional witness||Testimony.[e]|
|Shannon Edwards, Member, American Bar Association Standing Committee on the Federal Judiciary||Congressional witness|
|Deanell Reece Tacha, Pepperdine University School of Law Duane And Kelly Roberts Dean And Professor Of Law, U.S. Court Of Appeals Judge (Retired)||Republican witness||Testimony.[f]|
|Robert Harlan Henry, President of Oklahoma City University, U.S. Court Of Appeals Judge (Retired)||Republican witness|
|John L. Kane Jr., United States federal judge, United States District Court for the District of Colorado||Republican witness|
|Leah Bressack, former law clerk||Republican witness||Testimony.[g]|
|Elisa Massimino, President and CEO, Human Rights First||Democratic witness||Testimony.[h]|
|Jameel Jaffer, Executive Director, Columbia University/Knight First Amendment Institute||Democratic witness||Testimony.[i]|
|Jeff Perkins||Democratic witness||Testimony.[j]|
|Guerino J. Calemine, III, General Counsel, Communication Workers of America||Democratic witness||Testimony.[k]|
|Jeff Lamken, Partner, MoloLamken||Republican witness||Testimony.[l]|
|Lawrence Solum, Carmack Waterhouse Professor Of Law, Georgetown University Law Center||Republican witness||Testimony.[m]|
|Jonathan Turley, J.B. And Maurice C. Shapiro Professor Of Public Interest Law, The George Washington University Law School||Republican witness||Testimony.[n]|
|Karen Harned, Executive Director, National Federation Of Independent Business Small Business Legal Center||Republican witness||Testimony.[o]|
|Heather McGhee, President, Demos||Democratic witness||Testimony.[p]|
|Fatima Goss Graves, Senior Vice President For Program & President-Elect, National Women's Law Center||Democratic witness||Testimony.[q]|
|Patrick Gallagher, Director, Sierra Club Environmental Law Program||Democratic witness||Testimony.[r]|
|Eve Hill, Partner, Brown Goldstein Levy||Democratic witness||Testimony.[s]|
|Peter Kirsanow, Commissioner, U.S. Commission On Civil Rights; Partner, Benesch, Friedlander, Coplan & Aronoff||Republican witness||Testimony.[t]|
|Alice Fisher, Partner, Latham & Watkins||Republican witness||Testimony.[u]|
|Hannah Smith, Senior Counsel, Becket Fund||Republican witness||Testimony.[v]|
|Timothy Meyer, former law clerk||Republican witness||Testimony.[w]|
|Jamil N. Jaffer, former law clerk||Republican witness||Testimony.[x]|
|Kristen Clarke, President & CEO, Lawyers Committee For Civil Rights Under Law||Democratic witness||Testimony.[y]|
|Sarah Warbelow, Legal Director, Human Rights Campaign||Democratic witness||Testimony.[z]|
|Amy Hagstrom Miller, President, CEO, & Founder, Whole Woman's Health||Democratic witness||Testimony.[aa]|
|William Marshall, William Rand Kenan Jr. Distinguished Professor Of Law, University Of North Carolina||Democratic witness||Testimony.[ab]|
|Sandy Phillips||Democratic witness||Testimony.[ac]|
Gorsuch needed to win a simple majority vote of the full Senate to be confirmed, but the opposition could prevent a vote through a filibuster, which required a 60-vote super-majority to be defeated. At the time of the Gorsuch nomination, Republicans held 52 seats in the 100-seat chamber, as well as the potential tie-breaking vote in Vice President Pence. After nominating Gorsuch, President Trump called on the Senate to use the "nuclear option" and abolish the filibuster for Supreme Court appointments if its continued existence would prevent Gorsuch's confirmation. (The nuclear option was used in 2013 by then Senate Majority Leader Harry Reid (D-NV) to abolish filibusters for all presidential appointments except nominations to the Supreme Court.)
While some Republican Senators such as John McCain (R-AZ) expressed reluctance about abolishing the filibuster for executive appointments, others such as John Cornyn (R-TX) argued that the GOP majority should reserve all options necessary to confirm Gorsuch. Other political commentators have proposed that GOP Senate leadership adopt a strategic use of Standing Rule XIX to avoid the elimination of the filibuster.
During the last day of committee hearings, Senate Minority Leader Chuck Schumer (D-NY) announced from the Senate floor that he would filibuster the nomination. Democratic opposition focused on complaints saying that Scalia's seat should have been filled by President Obama. In addition, Democratic Senators Al Franken (D-MN), Bernie Sanders (D/I-VT), Elizabeth Warren (D-MA), and Kamala Harris (D-CA) criticized aspects of Gorsuch's record. Senator Jeff Merkley (D-OR) said he would do "anything in his power"—including the power of filibustering—to oppose Gorsuch's nomination. However, Democratic opposition was not unified, with Senators Joe Manchin (D-WV), Heidi Heitkamp (D-ND), and Joe Donnelly (D-IN) supporting confirmation.
On April 4, BuzzFeed and Politico ran articles highlighting similar language occurring in Gorsuch's book The Future of Assisted Suicide and Euthanasia and an earlier law review article by Abigail Lawlis Kuzma, Indiana's deputy attorney general. Academic experts contacted by Politico "differed in their assessment of what Gorsuch did, ranging from calling it a clear impropriety to mere sloppiness".
John Finnis, who supervised Gorsuch's Oxford dissertation at Oxford stated, "The allegation is entirely without foundation. The book is meticulous in its citation of primary sources. The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is, frankly, absurd." Kuzma stated, "I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the 'Baby/Infant Doe' case that occurred in 1982." Noah Feldman, a Harvard Law professor, thought that Gorsuch had committed "minor plagiarism", that deserved "no more punishment than the embarrassment attendant on its revelation".
On April 6, 2017, Democrats filibustered (prevented cloture of) the confirmation vote of Gorsuch. The Senate Republicans invoked the so-called nuclear option and changed the Senate rules to end filibusters for Supreme Court nominees. After the change to Senate rules, Senate Republicans along with four Senate Democrats (Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Joe Donnelly (D-IN), and Michael Bennet (D-CO)) agreed to cloture.
The Senate confirmed Gorsuch on April 7, 2017, by a vote of 54–45. All Senate Republicans present, along with Democratic Senators Manchin (D-WV), Heitkamp (D-ND), and Donnelly (D-IN), voted to confirm Gorsuch. Johnny Isakson (R-GA) was absent for the vote because he was recovering from back surgery, but had supported the nomination.
Responses from organizations and notable personsEdit
Norm Eisen, who was named by Obama to be Special Counsel for Ethics and Government Reform in the White House and Ambassador to the Czech Republic, has endorsed Gorsuch. Eisen was a classmate of both Gorsuch and Obama at Harvard Law. Neal Katyal, who served as Acting Solicitor General of the United States during the Obama Administration and who is currently a law professor at Georgetown University Law Center, endorsed Gorsuch for approval to the Supreme Court.
The National Rifle Association, the National Shooting Sports Foundation, the Second Amendment Foundation and other gun rights groups endorsed Gorsuch, while Americans for Responsible Solutions, the Law Center to Prevent Gun Violence and other gun control proponents have opposed his nomination. House Minority Leader Nancy Pelosi (D-CA) claimed Gorsuch "comes down on the side of felons over gun safety". PolitiFact called her statement misleading and said that Gorsuch's past rulings do not "demonstrate that he thinks more felons should be allowed guns than what is already permitted under the law".
The American Civil Liberties Union raised concerns about Gorsuch's respect for disability rights. The Secular Coalition for America, Freedom from Religion Foundation and Union for Reform Judaism all voiced concerns with Gorsuch's nomination.
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I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law," Mr. Katyal wrote in a New York Times op-ed. "His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.
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