Mar 20, 2017
Comparing Gorsuch’s Senate Confirmation with Recent Ones
On Monday, the Senate Judiciary Committee will begin its hearing on the confirmation of Neil Gorsuch to be an associate justice of the Supreme Court. Senate Majority Leader Mitch McConnell is confident that the Senate will confirm Gorsuch before the Easter recess, which is set to begin April 10.
As Senate Democrats have scrambled to find reasons to object to Gorsuch, scores ofpeople across the political spectrum have spoken out in support of the nominee. Thus, if Sen. Dianne Feinstein, ranking member of the Judiciary Committee, and other Democrats want to stop Gorsuch’s nomination, they will face an uphill battle during the hearings.
As the hearing starts, how has this process compared to other Supreme Court confirmations in recent years?
The Bush Years
President George W. Bush’s first chance to make a Supreme Court nomination came in July 2005 when Justice Sandra Day O’Connor announced her intention to retire. This was the first vacancy on the court in over a decade. Bush nominated D.C. Circuit Judge John Roberts on July 19, 2005. While his nomination was pending, Chief Justice William Rehnquist, who had been battling thyroid cancer, died Sept. 3.
With Rehnquist’s death, Bush rethought his strategy for filling two vacancies on the Supreme Court. He decided to withdraw Roberts’ nomination to be an associate justice and announced him Sept. 5 as nominee for chief justice of the United States.
The Senate Judiciary Committee met Sept. 12-15 for Roberts’ confirmation hearing, and one week later, on Sept. 22, the committee voted 13-5, with three Democrats joining the Republicans, to send his nomination to the full Senate. The Senate voted to confirm Roberts on Sept. 29, 2005, just in time for him to join the court before the start of its 2005-2006 term the next week.
After deciding to nominate Roberts to be chief justice, Bush first tapped White House counsel Harriet Miers, a Texas lawyer who served as Bush’s personal lawyer before he became president, as the nominee for associate justice. He made the announcement Oct. 3.
As a result of a campaign by conservatives who wanted a nominee with a demonstrated conservative record and judicial experience, Miers withdrew her nomination weeks later and Bush announced his pick of 3rd Circuit Judge Samuel Alito on Oct. 31.
Alito’s hearing was not held until Jan. 9-13. Less than two weeks later, on Jan. 24, the Senate Judiciary Committee voted 10-8 to send him to the full Senate. Then-Sen. Barack Obama, D-Ill., and 23 other senators attempted to lead a filibuster to block Alito’s confirmation, but they were unsuccessful.
The Senate ultimately confirmed Alito by a vote of 58-42 on Jan. 31, 2006, with four Democrats joining the Republicans in confirming Alito.
As president, Obama later expressed regrets about this filibuster attempt when Senate Republicans signaled that they would not confirm a nominee for the vacancy left by Justice Antonin Scalia’s death Feb. 13, 2016, during Obama’s final year in office.
The Obama Years
Obama’s first opportunity to pick a Supreme Court justice came when David Souter announced his retirement in 2009. Obama selected 2nd Circuit Judge Sonia Sotomayor, and he made the announcement on May 26, 2009. Sotomayor’s hearing was held July 13-16.
Highlights from the hearing included Republican senators grilling Sotomayor about her controversial views, including her claim that appellate courts “make policy” and that she believed “a wise Latina woman” would “reach a better conclusion than a white male” judge. Two weeks later, the Judiciary Committee voted 13-6 to send her to the full Senate.
Sen. Lindsey Graham, R-S.C., joined Democrats in that vote. Nine days later, on Aug. 6, 2009, the Senate voted to confirm Sotomayor by a vote of 68-31, with nine Republicans voting for her.
The following year, Obama had another chance to nominate a Supreme Court justice. He chose his solicitor general, Elena Kagan, to replace Justice John Paul Stevens, announcing the nomination on May 10, 2010.
Obama administration senior adviser David Axelrod recounted the story of Scalia’s approaching him at an event shortly after Souter announced he would retire in 2009. As Axelrod tells it, Scalia said, “I have no illusions that your man will nominate someone who shares my orientation … But I hope he sends us someone smart.”
Scalia continued, according to Axelrod: “Let me put a finer point on it … I hope he sends us Elena Kagan.” Scalia got his wish the second time around.
Kagan’s hearing took place June 28-July 1 (and notably included testimony by Heritage Foundation scholar Robert Alt). Three weeks later, the Judiciary Committee voted 13-6 to send her to the full Senate—with Graham joining the Democrats again. The Senate voted 63-37 to confirm her two weeks after that, on Aug. 5, 2010. Five Republicans and two independents joined the Democrats.
As the Obama administration came to a close, it seemed unlikely that another vacancy would occur on the Supreme Court—notwithstanding a not-so-subtlecampaign to encourage Justice Ruth Bader Ginsburg to step down. Then on Feb. 13, 2016, the nation was stunned by the sudden death of Scalia.
The upcoming presidential election took on a new level of significance as Senate Republicans vowed to keep the seat open so that the next president, and by extension, the American people, could fill it. Nevertheless, Obama nominated Merrick Garland, chief judge of the D.C. Circuit. Senate Republicans, however, refused to allow the nomination to move forward.
Confirmation Process by the Numbers
That brings us to Neil Gorsuch. President Donald Trump announced his nomination on Jan. 31, so if Gorsuch is confirmed before the Easter recess, the process will have taken 10 weeks.
That’s slightly quicker than recent nominees but by no means out of the ordinary. Sotomayor clocked in at 11 weeks, Kagan and Alito both took 14 weeks, and Roberts was confirmed within 11 weeks from his first nomination.
Gorsuch enjoys perhaps the broadest bipartisan support of any nominee in recent history, and he is eminently qualified to join the Supreme Court. Though there has been some talk of Democrats attempting to mount a filibuster, these are rare for Supreme Court confirmations.
Thus, Gorsuch is likely to be confirmed on the timetable McConnell laid out. And Republicans appear prepared to play hardball if necessary—to limit Senate debate by invoking the nuclear option—to ensure Gorsuch is confirmed.
Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
Gorsuch speaks at Supreme Court confirmation hearing
Supreme Court nominee Neil Gorsuch’s spoke before his confirmation hearing Monday.
Gorsuch says he is “honored and humbled” to be in front of the hearing. He thanks senators for their advice.
“Sitting here I am acutely aware of my own imperfections. But I pledge to each of you and to the American people that, if confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of this great nation,” he says.
Emotional moment as Gorsuch tells his wife, “I love you so much” and hugs her.
He pauses for a moment after the hug and coughs to clear his throat.
He tells his daughters back home, “I love you impossibly.”
Gorsuch seeks to deal with some concerns by Democrats:
“I have ruled for disabled students, prisoners, and workers alleging civil rights violations. Sometimes, I have ruled against such persons too. But my decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case,” he says.
Gorsuch refers to the clothing judges wear in the U.S. Sen. Sasse had pointed to this earlier, and so has somewhat stolen his thunder on this.
“In other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes,” he says. “Ours is a judiciary of honest black polyester.”
Gorsuch works to assure nervous Democrats he is not an extremist by pointing to his record.
“My law clerks tell me that 97 percent of the 2,700 cases I’ve decided were decided unanimously. And that I have been in the majority 99 percent of the time,” he says.
Gorsuch:”Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up. But the answers we reach are always the ones we believe the law requires,” he says.
“For all its imperfections, the rule of law in this nation truly is a wonder – and it is no wonder that it is the envy of the world.”
Gorsuch mentions a recently deceased Uncle Jack who was an Episcopal priest and gets choked up again.
“He gave the benediction when I took my oath as a judge 11 years ago. I confess I was hoping he might offer a similar prayer for me this year. As it is, I know he is smiling,” he says, turning away for a moment.
Gorsuch is spending a lot of time paying tribute to his family, including his parents and grandparents.
“My Dad taught me that success in life has little to do with success. Kindness, he showed me, is the great virtue. He showed me too that there are few places closer to God than walking in the wilderness or wading a trout stream. Even if it is an awfully long drive home with the family dog after he encounters a skunk,” he says.
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