Friday, April 7, 2017
We Hope That Gorsuch Will Be Half As Good A Justice As We Hope He Is. Big Conservative Hopes Rest On HIs Shoulders
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 triumph for President Trump, whose campaign appeal to reluctant Republicans 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.
“As a deep believer in the rule of law, Judge Gorsuch will serve the American people with distinction as he continues to faithfully and vigorously defend our Constitution,” the president said.
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.
Judge Gorsuch will be sworn in on Monday, in two ceremonies: a private session at the Supreme Court, where Chief Justice John G. Roberts Jr. will preside, and a public event at the White House, where Justice Anthony M. Kennedy will administer a second oath.
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 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.
But by design, that move left the Supreme Court filibuster untouched. Democrats have insisted that history remember who toppled this final emblem of minority party influence over confirmations.
“They have had other choices,” Senator Chuck Schumer of New York, the Democratic leader, said of Republicans, after arguing for weeks that the nomination should be withdrawn if Judge Gorsuch could not earn 60 votes. “They have chosen this one.”
Over the last year, the eight-justice court has deadlocked a few times, but it has employed all kinds of strategies to avoid being completely hobbled. The justices have ducked some cases, issued vanishingly narrow decisions in others and slow-walked still others, waiting for a ninth justice to resolve what would otherwise be a 4-4 tie.
On his third day on the bench, Justice Gorsuch will hear what may be the most important case of the term, a church-state clash with accessible facts and vast implications. On the Federal Court of Appeals in Denver, Judge Gorsuch was receptive to claims based on religious freedom, and he may make an early mark at the Supreme Court in that same area.
There is good reason to think he may cast the decisive vote in the case, Trinity Lutheran Church v. Comer, No. 15-577. The court has signaled that it feared a deadlock, taking an extraordinarily long time to schedule arguments.
The justices agreed to hear the case in January 2016, when Justice Scalia was still alive. Indeed, he may have cast the fourth vote required to place the case on the court’s docket.
Other cases the court agreed to hear that day were argued and decided by the end of the last term, in June. But the court put the religion case on a very slow track, scheduling it for argument in the waning days of the current term.
The case arose from a program in Missouri that helps schools use recycled tires to resurface playgrounds. State officials rejected an application from a Lutheran church that wanted to participate in the program for a playground at its preschool and day care center.
The officials based their decision on the Missouri Constitution, which bars spending public money “in aid of any church.”
The church argued that the state’s Constitution violated equal protection principles and the First Amendment’s guarantee of free exercise of religion. Missouri said states should have leeway to decide for themselves whether and how much to help religious groups.
One of Justice Gorsuch’s earliest votes, then, will be in a case that could refashion the rules for how much state governments can keep their distance from religion.
Should the court deadlock in cases it has already heard this term, as is possible in ones on a cross-border shooting and fair housing, it could order them reargued so that Justice Gorsuch might break the tie. In all likelihood, such rearguments would come in the court’s next term, which starts in October.
Among the cases the court has already agreed to take up next term are three about whether companies can use employment contracts to prohibit workers from banding together to take legal action over workplace issues. In the time before Judge Gorsuch’s confirmation, Democrats expressed particular concern about his record on workers’ rights, suggesting that his rulings tended to favor the privileged.
Cases concerning arbitration clauses with class-action waivers in other settings have divided the court along ideological lines, with the conservative justices voting to uphold the provisions. Here, too, Justice Gorsuch may hold the decisive vote.
The court will also hear a case on whether corporations can be sued for complicity in human rights abuses abroad, a question that has echoes of the court’s 2010 decision in Citizens United, which allowed corporations to spend unlimited sums in elections.
The court divided 5-4 along ideological lines in both Citizens United and an earlier human rights case, meaning that Justice Gorsuch’s vote may once again prove crucial.