Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD


Gorsuch May Come Back to Bite the Democrats on the Butt

By Rob Tenery, MD on April 3, 2017

Senate Minority Leader Chuck Schumer, D-N.Y., has announced that he will vote no on the nomination of Judge Neil Gorsuch and lead a filibuster of the selection. More than a dozen Democrats also have announced their opposition and will try to thwart GOP efforts to press ahead on the choice. Such a step would require 60 votes in the 100-seat Senate, but Republicans only hold a 52-48 majority. Associated Press

Flashback: According to the Congressional Research Service report on the U.S. Circuit and District Court Nominations by President George W. Bush, Neil Gorsuch was confirmed in an ‘en bloc voice vote’ on 20 July 2006. Included in that group were Democratic Senators Chuck Schumer, Dick Durbin, Patrick Leahy, also John Kerry, Joe Biden and Hillary Clinton.

Schumer and his allies are now singing a different tune, painting Gorsuch as a ‘corporate stooge’. "Judge Gorsuch's decisions had negative real-life implications for working Americans," Schumer tweeted. He also said, "When the chips are down, far too often he sides with the powerful few over everyday Americans just trying to get a fair shake."

“The bottom line is very simple, and that is that Gorsuch did not acquit himself well at the hearings and did not impress our caucus,” said Sen. Chuck Schumer.

Schumer’s decision may force the Republican leadership in the Senate to change parliamentary policy and invoke the nuclear option to confirm Gorsuch to the Supreme Court. Under a nuclear option, invoked in 2013 by then Senate Majority Leader Harry Reid, nominations could be approved by a simple majority in the 100-member Senate, rather than the 60 votes it normally takes to overide parliamentary hurdles. This came about when Reid became upset about the blockage of President Barack Obama's nominees to the powerful appellate court. The Democrats pushed through a rules’ change lowering the vote threshold on all nominees except for the Supreme Court from 60 to a simple majority.

With only 10 months remaining in his final term, President Obama nominated centrist appellate judge Merrick B. Garland to fill the vacant seat of Antonin Scalia. Senate majority leader, Mitch McConnell, appeared on the Senate floor shortly after the president’s remarks to declare an end to Judge Garland’s nomination, no matter his qualifications.

"It's not just for the Supreme Court, even for appellate courts, both parties have followed this precedent," Senator Marco Rubio responded, on Meet the Press on February 14, 2016. "There comes a point in the last year of the president’s term, especially in their second term, where you stop nominating, or you stop the advice and consent process."

A Supreme Court vacancy in the last year of a presidency is very uncommon. Since 1900, it’s only happened once to a ‘lame duck’ president, and twice more to presidents who lost re-election bids.

Not holding hearings on Judge Garland’s nomination was probably a bad move for McConnell politically. President Obama knew the Senate Republicans would not put his nomination on the Court bench. But by nominating centrist Garland, he had temporarily put the Republicans on defense. They turned it around by making control of the balance on the Supreme Court one of the central issues in the 2016 election. Despite reservations about Trump personally, many Republicans voted for him to keep the court conservative.

Reid’s move to protect his Party’s interests, seems to have come back to haunt him. Mitch McConnell, minority leader in the Senate when Reid passed the nuclear option, warned Democrats their strategy would backfire: "I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think." 





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