Supreme Battle

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.

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.

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.

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 Ban") Trump 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.”

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.

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.”