Analysis Law and Policy

Can the Democrats Block Gorsuch, and Does It Matter if They Do?

Jessica Mason Pieklo

Senate Democrats have promised a fight over the Supreme Court nomination of Neil Gorsuch. Does it even matter?

The Senate Judiciary Committee voted along party lines Monday to advance the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, setting up a fight in the full Senate that could forever change the way presidential nominees are confirmed.

The vote followed days of testimony in which Democrats pressed Gorsuch in vain to answer basic questions, such as whether he agreed with the outcome of Brown v. Board of Education, the Supreme Court case that desegregated public schools,  or whether the 14th Amendment’s equal protection clause applied to combating sex discrimination faced by women.

Gorsuch could also not recall with any specificity the time he spent at the U.S. Department of Justice under the Bush administration, despite being pressed by committee members. At the same time, however, he insisted to the committee that his history at the agency of arguing in favor of Bush-era detention and torture policies was simply part of his job as a government lawyer.

Yes, Gorsuch is incredibly pedigreed. Yes, Gorsuch is an extremely accomplished judge. But he’s also a candidate for the Supreme Court who will not go on the record to definitely say he believes school desegregation is good public policy. And his obfuscations gave Senate Judiciary Democrats all they needed to break Senate norms—wherein nominations are almost always advanced, based on the idea that senators are all colleagues and can disagree without being disagreeable.

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During the hearings, Senate Republicans leaned on those political norms hard. They helped Gorsuch build on his “nice guy” reputation by letting him tell Hemingway-worthy stories of Colorado fly-fishing. They let him chortle about what it was like to play basketball with Supreme Court Justice Byron White, one of the two justices he clerked for. The other—the more centrist Justice Anthony Kennedy—was barely mentioned during the hearings.

Meanwhile, Gorsuch could barely mask his disdain for Sen. Mazie Hirono (D-HI), who pushed Gorsuch the hardest on his record attacking LGBTQ rights. Gorsuch spent most of his time answering questions asked by Sen. Amy Klobuchar (D-MN), an experienced prosecutor in her own right, by condescendingly mansplaining the law to her, to the point she had to tell him to stop. This is a guys’ guy, and in the Donald Trump administration, that’s all the public can expect.

The fight now moves to the full Senate, where Democrats have vowed to filibuster the Gorsuch nomination.

But it’s too late.

We’ve known Gorsuch’s record on every matter progressives care about since before November, when his name appeared on President Trump’s short list of potential nominees. We knew Gorsuch went out of his way in the Hobby Lobby opinion to expand corporate religious rights at the expense of employees. We know he voted to let a truck driver potentially freeze in order to protect the legal interests of that trucker’s boss. We know he believes that the intentional taking of a human life is always wrong, despite the fact he refused to answer a single direct question on the right to sexual privacy and reproductive autonomy.

The truth is that conservatives have played the better long game on the federal courts than liberals have. Under President Obama, conservatives stalled Obama’s judicial appointments to unprecedented levels, shortage crises be damned. For a year, Senate Republicans refused to meet with Judge Merrick Garland, President Obama’s nominee to fill the late Antonin Scalia’s seat. For a year, Senate Democrats did not a damn thing about this fact. And by the time Senate Democrats decided to launch an organized opposition to the Gorsuch nomination, the press and the public was too preoccupied with the myriad Trump scandals—from Russian election interference to the disastrous Muslim ban—to focus on the fact Republicans have flat-out stolen a seat on the Supreme Court to keep the balance of power on the Court on their side.

To overcome a Democratic filibuster, Republicans will need at least 60 votes. As of now, Republicans have 52 senators, and four Democrats have said they will vote for Gorsuch. In response, Senate Majority Leader Mitch McConnell has vowed to change the rules and invoke the “nuclear option,” which would allow Gorsuch—and future Court nominees—to be confirmed by a simple majority vote. We have no reason to doubt that he’ll do so.

Republicans will do whatever it takes to keep a conservative majority on the Supreme Court, and if that means they’ll change the rules to get Gorsuch confirmed, well, they will change the rules.

This, folks, is what a failure of Democratic leadership looks like. They sat around and did nothing during the Garland obstruction despite the fact conservatives listed the Supreme Court as one of the top-line issues they voted on. Now, they have organized a vocal opposition to the Gorsuch nomination, despite the fact that they had months to start.

We have to assume that Gorsuch makes it onto the Court. So the question then is really: What next? Not just for the Supreme Court, but for the federal judiciary writ large?

Let’s be very clear what this old-boys-club confirmation hearing of Neil Gorsuch will produce in terms of binding legal jurisprudence. As a U.S. Department of Justice attorney, he worked to try to expand executive power to order torture, in direct response to congressional action to curb that power. There is every reason he will vote to do the same regarding Trump’s Muslim ban. As a judge on the federal court of appeals, he went out of his way to grant corporations religious objection rights to regulations they disagree with. On the Supreme Court, we can expect him to vote to solidify these objections under the First Amendment, which would enshrine religious discrimination in the Constitution. In fact, there’s already a case lurking around the Court that is poised to do just that.

And he will cast those votes and write those opinions with a smile, reveling in the pats on the back the Senate gave him for playing basketball as a SCOTUS clerk.

The reality is, absent something extraordinary happening, Neil Gorsuch will be an associate justice of the Supreme Court, and soon. The rest of us are going to have to figure out how to navigate the decades of civil rights rollbacks he intends to push through and how to stay safe as our bodies are increasingly policed and targeted for violence. It’s not just this supposedly moderate justice progressives have to contend with. It’s the next Supreme Court nomination from the Trump administration—because the likelihood of a second nomination increases every day he remains in office.

Which means by not fighting for Garland the way Democrats should have, they likely handed control of the most powerful Court in the country to the most conservative wing of the Republican Party. And the rest of us are stuck living in that reality.

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