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Judge Neil M. Gorsuch with President Trump at the White House

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Supreme Battle

What you need to know about the fight over President Trump’s nominee to the Supreme Court
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Neil Gorsuch Supreme Court Nomination

There’s not much that happens in Washington that can compete with the drama of a Supreme Court nomination. To understand why, you only need to do some simple math: Unlike the presidents who nominate them, the Court’s nine justices can keep their jobs for life—and help shape American society for decades. 

But even more than the usual fireworks may be in store for President Donald Trump’s Supreme Court nominee, Neil M. Gorsuch. For one thing, Democrats are itching for a fight over a nomination that they say was stolen from former President Barack Obama. And for another, Republicans are threatening, if necessary, to use a Senate parliamentary maneuver so extreme that it’s referred to as the nuclear option (see “Supreme Lingo,” below). 

All in all, it has the makings of a monumental battle, even by Washington standards. 

“It’s going to be a huge fight,” says Geoffrey Stone, a law professor at the University of Chicago. 

Here’s what you need to know to follow the action.

What’s at stake?

At stake is the ideological makeup of the nation’s highest court. Trump wants Gorsuch, a conservative federal judge from Colorado, to fill the seat vacated by the February 2016 death of Justice Antonin Scalia, who led the Court’s conservatives. The vacancy, now more than a year old, has left the Court with four liberal-leaning justices, three conservative-leaning justices, and one justice who is often the swing vote (see “The Court,” below). Senate confirmation of Gorsuch would restore the same ideological balance that existed when Scalia was on the Court.

 Last year, Obama nominated a liberal-leaning judge, Merrick Garland, to fill the vacancy. But the Republican-controlled Senate refused to consider his nomination in an election year. Democrats are still furious that Obama’s pick wasn’t given a vote, and some have called for an all-out war over Gorsuch’s nomination.

What’s Judge Gorsuch’s background? 

Gorsuch, 49, is the youngest person nominated to the Supreme Court in 25 years. That matters because, if confirmed, he could serve for decades. He’s a graduate of Columbia University and Harvard Law School. He was appointed to the U.S. Court of Appeals for the 10th Circuit, in Denver, by President George W. Bush. Like Scalia, Gorsuch considers himself an “originalist,” meaning he tries to interpret cases with an eye toward what the writers of the Constitution originally meant when they drafted the document in 1787.

What are Democrats & Republicans fighting about?

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Both parties are aware that the Supreme Court will rule on some very important cases in coming years. Among the issues that the justices might consider are gun rights, the death penalty, environmental regulations, and the president’s authority to shape immigration and national security policy.

Senate Republican leader Mitch McConnell wants a speedy confirmation. 

“I hope members of the Senate will . . . show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination,” McConnell says.

But Democrats don’t see it that way. Aside from believing that Obama should have selected the new justice, they view Trump’s actions in office as so extreme that they warrant extra scrutiny of his Supreme Court nominee. Just a few days before Trump announced the Gorsuch nomination in January, he issued an executive order closing U.S. borders to immigrants, travelers, and refugees from seven predominantly Muslim countries. (For more, see “Trump’s Travel BanTrump also harshly criticized judges who ruled against the ban. Democrats want to make sure the next justice is willing to challenge Trump if necessary.

“[Trump’s] administration, at least at its outset, seems to have less respect for the rule of law than any in recent memory, and is challenging the Constitution in unprecedented fashion,” says Senator Chuck Schumer of New York, the Democratic leader. “There’s a special burden on this nominee to be an independent jurist.”

How many votes does Gorsuch need to get confirmed? 

Technically, a Supreme Court nominee needs only 51 of the Senate’s 100 votes to be confirmed. But Senate rules permit the minority party to use a filibuster to block a confirmation vote. (A filibuster lets a single senator or group of senators delay or block a vote by speaking indefinitely, or even just threatening to do so.) Republicans would need 60 votes to overcome a filibuster, and with just 52 Republicans in the Senate, they’d need to convince eight Democrats to vote with them.
No one expects that to happen.

If Democrats do block Gorsuch’s nomination with a filibuster, however, Republicans could take the drastic step of changing the Senate rules to get rid of the filibuster for Supreme Court confirmations. (Only 51 votes are needed to change Senate rules.) This option would do away with a procedural rule that’s helped protect the minority party for 100 years. That’s why it’s called the nuclear option—meaning it would blow up the traditions of the Senate. 

Ironically, the Democrats have already made use of the nuclear option. In 2013, when Democrats controlled the Senate, they did away with the filibuster for all other presidential nominees except for the Supreme Court. Their rationale was that it was necessary to break the gridlock and get something done. 

Senator McConnell hasn’t ruled out the nuclear option, but he’s a longtime believer in the Senate’s traditions—and he’s aware that a rule change that disadvantages the minority will also hurt Republicans if they become the minority party again.

But President Trump has urged McConnell not to hesitate. 

“If we end up with that gridlock, I would say, ‘If you can, Mitch, go nuclear,’” Trump said in February.

Will Gorsuch be confirmed quickly?

The confirmation process is likely to drag on for months, playing out live on television and online (see “The Confirmation,” below)

With so much at stake this time around, few expect Gorsuch’s confirmation to go smoothly. Legal experts say one underlying theme of the fight is likely to be the Supreme Court’s role in checking the power of the other branches of government (see “The Separation of Powers,” below). 

Jeffrey Fisher, a constitutional law professor at Stanford University in California, says it’s the responsibility of  presidents and Congress to propose new policies in response to crises or to what lawmakers view as the will of the people. 

“But the Court,” Fisher says, “is the guardian and the check that makes sure that what the other branches do does not tread on our fundamental constitutional values.”

With reporting by Daniel Victor, Matt Flegenheimer, Carl Hulse, and Adam Liptak of The New York Times. 

The Separation of Powers

    •  

      The federal government has three branches: the legislative, the executive, and the judicial. Each branch can check the powers of the other branches. The Framers designed this system of “checks and balances” so that no one part of the government would become too powerful. 

    • LEGISLATIVE

      Congress has two chambers: the Senate, with 100 members (2 from each state), and the House of Representatives, with 435 members (distributed based on population).

      MAIN JOB:  To write the nation’s laws

      CHECKS ON OTHER BRANCHES: Congress can override a president’s veto; the Senate must confirm the president’s nominees for courts and Cabinet positions; Congress can vote to impeach and remove the president.

    • EXECUTIVE

      Led by the president, the executive branch also includes the vice president and the Cabinet.

      MAIN JOB:  To enforce the nation’s laws

      CHECKS ON OTHER BRANCHES:The president can veto laws passed by Congress; the president appoints federal judges, including Supreme Court justices.

    • JUDICIAL

      Headed by the Supreme Court, which has nine justices who can serve for life. Below it are 13 federal courts of appeals and 94 federal district courts. 

      MAIN JOB: To evaluate our nation’s laws 

      CHECKS ON OTHER BRANCHES: The courts can overturn laws if judges find them to be unconstitutional; the courts can also overturn executive orders by the president.  

CREDITS: iStockphoto.com/Getty Images (Judicial Branch); Asia Glab/Shutterstock.com (Executive Branch, Legislative Branch)

Supreme Lingo

Key terms to know to follow the confirmation

ORIGINALISM: A judicial philosophy that calls for interpreting the Constitution on the basis of what the Framers originally meant when they wrote it in 1787. This approach, which favors a literal and narrow reading of constitutional language, is favored by many conservatives. It’s also known as strict constructionism. 

LIVING CONSTITUTION: A judicial philosophy that says our understanding of the Constitution’s meaning must evolve as society changes. This approach, favored by the liberals on the Court, is the opposite of originalism.

FILIBUSTER: A filibuster allows a single senator or a group of senators to delay or block a vote by speaking indefinitely, or even just threatening to do so. Overcoming a filibuster requires a supermajority of 60 votes. 

NUCLEAR OPTION: A possible decision by the majority party in the Senate to change the rules to get rid of the filibuster. It’s known as the “nuclear option” because it would blow up a long-standing Senate tradition. 

EXECUTIVE ORDER: A directive issued by the president that has much the same power as federal law. They are usually aimed at governing the actions of federal officials and agencies.

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Justice Elena Kagan at her Senate confirmation hearing in 2010

CREDIT: Astrid Riecken/ZUMAPress.com
The Confirmation: The nuts and bolts of how the process works 

Before the Senate votes on Judge Neil M. Gorsuch’s nomination to the Supreme Court, he will have to submit to intense scrutiny of his life and career.

1. UNDER THE MICROSCOPE  First, he’ll fill out an elaborate questionnaire, listing every client he ever represented as a lawyer, all his sources of income, places he’s traveled, interviews he’s given, and his judicial writings. The questionnaire is often hundreds of pages long.

Gorsuch will also meet behind closed doors with individual senators. In these sessions, which can last anywhere from 15 minutes to an hour, senators will try to figure out how
he thinks.

2. THE HEARINGS  Next comes the part we see: The 20 members of the Senate Judiciary Committee will conduct televised hearings. There’s an art to the questioning, since nominees rarely agree to take positions on issues that might come before the Court. So committee members typically ask more roundabout questions, hoping to figure out how a nominee’s judicial philosophy would apply to hot-button issues like gun rights and immigration.

Even the participants in these hearings have long questioned their value, because nominees reveal so little about how they would do the job they’re seeking. Justice Elena Kagan, who went through confirmation hearings in 2010, has called them a “vapid and hollow charade.”

The hearings are expected to last three or four days. Senators will question Gorsuch, and several outside witnesses will speak either for or against his nomination. 

3. THE SHOWDOWN  When the hearings are over, the 11 Republicans and nine Democrats on the Judiciary Committee will vote on whether to send the nomination to the full Senate for a vote.

If Gorsuch makes it that far, which is likely, Democrats will decide whether to filibuster to stop his confirmation. And Republicans will decide whether they’re willing to “go nuclear”—change the rules to end the use of a filibuster. Millions of Americans will be paying close attention.

“This confirmation fight is critical,” says Geoffrey Stone, a law professor at the University of Chicago, “because it will have a significant impact on the future of the nation.” 

The Court: Justice Scalia’s seat has been vacant for more than a year.

    • Chief Justice John G. Roberts Jr.

      Leans conservative 

      Appointed by George W. Bush in 2005

    • Clarence Thomas

      Leans conservative 

      Appointed by George H. W. Bush in 1991

    • Samuel A. Alito Jr.

      Leans conservative 

      Appointed by George W. Bush in 2006

    • Anthony M. Kennedy

      Often the swing vote 

      Appointed by Ronald Reagan in 1988

    • Ruth Bader Ginsburg

      Leans liberal 

      Appointed by Bill Clinton in 1993

    • Stephen G. Breyer

      Leans liberal 

      Appointed by Bill Clinton in 1994

    • Sonia Sotomayor

      Leans liberal 

      Appointed by Barack Obama in 2009

    • Elena Kagan

      Leans liberal 

      Appointed by Barack Obama in 2010

    • The ninth seat

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