The leaders of the two parties in the U.S. Senate, appearing separately on a TV talk show on Sunday morning, indicated that each has control of enough votes to assure that the Supreme Court nomination of Judge Neil M. Gorsuch will not be approved in the coming week without a showdown over Senate filibuster rules.
Majority leader Mitch McConnell, a Kentucky Republican, and Minority Leader Chuck Schumer, a New York Democrat, seemed equally confident of their current positions as the Senate moves toward a final vote on Gorsuch, probably by next Friday. The two leaders were interviewed on NBC-TV’s Meet the Press broadcast.
The Senate Judiciary Committee is expected to approve the Gorsuch nomination on Monday, and send it to the full Senate for debate and a final vote.
Senator McConnell said without hesitation and without qualification that the nomination will be approved by the full Senate next week, although he offered no details, and Senator Schumer said flatly and with equal assurance that Democrats will keep the nomination from getting 60 votes for approval.
Even if each is proven right, the very real prospect is that, in a matter of days, Judge Gorsuch will become the 113th Justice to serve on the Supreme Court – the first nominee of a Republican president to reach the court in 11 years. On at least some key issues, he could provide the deciding ninth vote when the other Justices divide evenly – as they have done on several important issues while the court has had only eight members.
Under the Senate’s current rules, the Gorsuch nomination would require only 51 votes in the 100-member Senate, where the Republicans have 52 votes to the Democrats’ 48. But, if a filibuster is mounted by the Democrats, as promised by Senator Schumer, it would require 60 votes to stop that maneuver and thus to clear the way for a final floor vote on the nomination.
On Sunday, the Democratic leader said his side has enough votes to deny the nominee 60 votes – meaning that he has good reason to know that at least 41 Democrats are prepared to vote against a motion to stop the filibuster, under the existing Senate rules. (So far, only three Democrats have publicly declared their support for Judge Gorsuch, and thus are likely not to support continuing a filibuster.)
But the prospect of at least 41 votes in opposition would not scuttle the Gorsuch nomination – provided that the Republican leadership would be ready to put through a change in Senate rules so that a filibuster could not succeed. It would take only 51 votes to approve the nomination if the rules are changed, because that, in essence, would withdraw the option to filibuster a Supreme Court nominee. In the event of such a rules change, a total of 51 votes could be achieved by having Vice President Pence cast the deciding vote if the Senate were tied, 50 to 50. That does not seem likely now, as the Republican ranks are expected to hold firm in support of the nomination; no GOP senator has declared opposition to the nominee.
Four years ago, when the Democrats had control of the Senate, they pushed through a rules change to require only 51 votes to approve nominations to lower court judgeships and to appointed positions in the government – a reaction to GOP efforts at the time to block lower court nominees by President Obama.
Because the filibuster has such a long history in the Senate, as one of the main methods of giving power to the minority, a move to end the filibuster rule was then and is now called a “nuclear option,” in the sense that it would blow up a venerated Senate tradition as a great deliberative body with sturdy minority rights. (The filibuster remains available now on all types of legislative activity other than nominations.)
Republican leader McConnell has not said explicitly in public that he would move to change the rules if the Democrats do begin a filibuster, but he has spoken with such firmness that Judge Gorsuch will be confirmed – and by next Friday – that he has been understood as sending the signal that he is ready to make the move if necessary.
If his prediction of approval comes true, Judge Gorsuch would succeed Justice Antonin Scalia, who died nearly 14 months ago and whose seat has remained open under a Republican Senate leadership strategy to prevent President Obama from picking the next Justice after Scalia died.
President Obama’s nominee, Circuit Judge Merrick B. Garland, never got a formal hearing in the Judiciary Committee, and his nomination was never put to a vote in that committee or by the full Senate. His nomination expired when the last Congress ended at the beginning of this year.
As a new Justice taking his seat early in this month, Judge Gorsuch would be able to take part in the court’s last group of hearings for the current term, during the two-week sitting that begins on April 17. The Justices will hear 13 cases, but by far the most important would be a case due up on April 19, involving one of the most important questions in years about the relationships between religion and government.
The case of Trinity Lutheran Church v. Pauley tests whether religiously-affiliated organizations have equal rights to government-provided benefits, if that type of aid has nothing to do with religion. At issue is a state program in Missouri for providing recycled tires to make matting for playgrounds at schools.
Although the court granted review on that case in January of last year, it kept putting off a hearing on it, apparently because of indications that the eight Justices could split 4-to-4 on deciding it. If, in fact, such a division were in prospect, Judge Gorsuch could break a tie.
As a judge on a federal Circuit Court, he had something of a reputation as sympathetic to claims of religious freedom. The Trinity Lutheran case reached the Supreme Court from a different federal Circuit Court, which upheld denial of the benefit to a church-operated school.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.