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Neil Gorsuch Confirmed As 113th Justice Of The Supreme Court

Neil Gorsuch

As expected, Neil Gorsuch has been confirmed as the 113th Justice of the United States Supreme Court:

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 signal triumph for President Trump, whose campaign 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.

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.

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.

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 Anthony M. 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.

Shortly after the Senate vote, the Supreme Court’s public information office announced in a press release that Justice Gorsuch will be officially sworn-in by Chief Justice Roberts in a private ceremony at the Court on Monday morning, which will be followed by a public ceremony later in the day where Gorsuch will be sworn in by Associate Justice Anthony Kennedy. At that point, the Supreme Court will be back to its full compliment of nine Justices for the first time since Justice Scalia died on February 13, 2016. Additionally, as I’ve noted before, Gorsuch will take the bench in time to participate in the final round of oral argument for the Court’s current term, during which the Court will hear argument in a total of thirteen cases, although none of them appear at first glance to be ones that would ordinarily be considered “blockbuster” cases for the current term. Gorsuch will also begin participating in the Court’s weekly conferences at which they consider pending cases for appeal, meaning that he could prove to provide the decisive fourth vote that will decide whether a particular case is accepted for appeal or not. At least as far as the remainder of this term goes, though, Gorsuch’s impact is likely to be minimal since he won’t be eligible to participate in cases that have already been argued or write opinions in any of those cases. This means he’s likely to be assigned at least a few of the cases that will be heard later this month if only to distribute the workload more evenly among the Justices, who have had to deal with the lack of a ninth member for the better part of a year now. After that, Gorsuch will have the summer break to prepare for the new term that starts in October during which the Court is likely to have to decide whether to take up cases dealing with everything from Donald Trump’s Muslim travel ban to the rights of transgender students in public schools.

Soon-to-be Justice Gorsuch is currently 49 years old and will turn 50 over the summer break, making him the youngest Justice on the Court. At this point, it’s possible that he will be on the Court until well into the middle of the 21st Century. As I’ve noted though, his confirmation is not likely to have a significant impact on the general ideological balance of the Court as it existed on the day Justice Scalia died. Like Scalia, Gorsuch has said he considered himself a “textualist” rather than an “originalist,” meaning that he looks primarily to the text of the statute(s) or Constitutional provision(s) at issue in a case as they apply to the facts on the record, rather than something outside that record that may or may not explain what the drafter say they meant in drafting those provisions. That’s not to say that textualists don’t consult these outside sources, of course, but if there’s a conflict between the text and the outside source, then the text must prevail. This doesn’t mean that Gorsuch will always rule exactly as Scalia did, of course, but it could mean that he will often find himself in disagreement with Justices Alito and Thomas, who are the true “originalists” on the Court at the present time.

In any case, after a prolonged period in which the Court was short a seat and a highly partisan Senate battle, we have a new member of the Supreme Court. Congratulations Justice Gorsuch, and good luck!

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    Congratulations Gorsuch on receiving someone else’s seat. While I highly dislike how you got here and have doubts on you will proceed, I do hope you live up to the promise and standards any Supreme Court Judge should have. Do your best to prove the asterisk next to your name reflects on the GOP’s bad behavior and not yourself.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 2

  2. michael reynolds says:

    Gorsuch is in receipt of stolen goods. He is not a legitimate justice, and all decisions in which he participates will be tainted. If he were a man of honor he would refuse. Clearly honor is not a problem for Justice Asterisk.

    Hot debate. What do you think? Thumb up 21 Thumb down 19

  3. Joe Gage says:

    @michael reynolds:

    Neil Gorusch is a fine choice. I understand your bitterness over Merrick Garland but the Dems lacked the power to get him confirmed. Let’s not forget that in late 2013, when the Republican minority was filibustering virtually all of President Obama’s nominees to the circuit courts. Harry Reid, responded by invoking, by simple majority vote, the so-called nuclear option.

    They changed the rules of the Senate so that district- and circuit-court nominations, as well as most executive-branch nominations, could no longer be filibustered. As a result, Reid was able to get dozens of lower-court judges confirmed before his party lost control of the Senate in the 2014 midterms.

    Hot debate. What do you think? Thumb up 10 Thumb down 16

  4. Barry says:

    Doug: “As I’ve noted though, his confirmation is not likely to have a significant impact on the general ideological balance of the Court as it existed on the day Justice Scalia died. ”

    You are using a standard that the GOP and only the GOP has a right to ‘balance’, when it favors them.

    Like or Dislike: Thumb up 14 Thumb down 0

  5. Barry says:

    @Joe Gage: ” Let’s not forget that in late 2013, when the Republican minority was filibustering virtually all of President Obama’s nominees to the circuit courts. Harry Reid, responded by invoking, by simple majority vote, the so-called nuclear option. ”

    When bolding your own words destroys your argument…………….

    Like or Dislike: Thumb up 11 Thumb down 0

  6. Joe Gage says:

    @Barry:

    It’s not an argument, but a fact. Harry Reid used every tactic possible when he led the Senate to get legislation and nominees through. There also has never been a successful filibuster of a nominee for associate justice in the history of the United States. You should try to take a look at Neil Gorush without partisan lenses and perhaps you’ll realize he’s not the Demon the Dem Senators have portrayed him.

    https://qz.com/950828/neil-gorsuch-supreme-court-vote-the-democratic-case-for-supporting-the-conservative-judge/

    Like or Dislike: Thumb up 2 Thumb down 9

  7. Scott O says:

    To me Gorsuch will always be the Trump judge.

    Like or Dislike: Thumb up 3 Thumb down 0

  8. grumpy realist says:

    Given how justices have ruled in the past, anyone who thinks he can predict what Justice Gorsuch will do is probably going to be quite surprised.

    I’ll be interested to see what Justice Gorsuch says in patent law cases.

    Like or Dislike: Thumb up 8 Thumb down 0

  9. James Pearce says:

    @michael reynolds:

    Gorsuch is in receipt of stolen goods.

    Nah, we knew whoever won the election in Nov was going to get to fill Scalia’s seat. Those were the stakes.

    Hillary and her voters could have acted accordingly. They did not.

    Like or Dislike: Thumb up 9 Thumb down 5

  10. Paul L. says:

    @michael reynolds:
    If Merrick Garland was on the Supreme Court, Ruth Bader Ginsberg would declare the Electoral College unconstitutional and declare Hilary Clinton the President.

    https://www.theatlantic.com/politics/archive/2016/04/what-if-the-supreme-court-were-liberal/477018/

    A Supreme Court bench with five Democratic appointees will not extend this protection for gun rights and likely would overrule it, returning to the view that the Second Amendment protects only a right to have guns for the purpose of militia service.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 18

  11. Merrick Garland says:

    Stolen Valor.

    He will be remembered as the supreme court judge that should not have gotten that seat.

    Like or Dislike: Thumb up 11 Thumb down 5

  12. Jim Brown 32 says:

    @Joe Gage: This has nothing to do with Garland. This had everything to do with signalling that the gloves are off. Democrats now understand that this particularly adversary needs to be punched in the face every opportunity–as often as possible. I’ll bet Harry Reid’s wishing he didn’t show prior restraint.\

    At any rate, the Japanese celebrated their tactical victory at Pearl Harbour. It turned out to be the begining of the end. Demographics WILL catch up to the GOP–just not as soon as everyone thought. The way has been cleared for the Court to be packed with liberal justices. Thanks GOP!

    Like or Dislike: Thumb up 11 Thumb down 1

  13. Joe Gage says:

    @Jim Brown 32:

    I think the gloves have been off for a long time and it sucks. We’re been in this vicious revenge cycle by both parties for over 20 years. It’s still a fact the GOP controls the House and the Senate and can do mostly what they please. I do honestly hope the Dems take back the House as I find it dangerous when any one party controls all 3 branches of government.

    Like or Dislike: Thumb up 4 Thumb down 2

  14. An Interested Party says:

    I think the gloves have been off for a long time and it sucks. We’re been in this vicious revenge cycle by both parties for over 20 years.

    Oh really? When would you say that started? Perhaps when the Dems were so mean to Robert Bork that they gave him hearings and an up or down vote? Or maybe it was when Republicans decided to impeach a Democratic president that they couldn’t get rid of any other way? Or perhaps it was when a bare GOP/conservative majority on the Supreme Court gave George W. Bush the presidency and made sure to let everyone know that how they came to their noxious decision as well as the decision itself only applied in that one circumstance…

    Like or Dislike: Thumb up 14 Thumb down 0

  15. HarvardLaw92 says:

    Thief …

    Like or Dislike: Thumb up 13 Thumb down 2

  16. Pch101 says:

    Many Republicans want a one-party system.

    I’m now at the point that I would be happy to give that to them, just as long as it isn’t their party.

    Like or Dislike: Thumb up 5 Thumb down 0

  17. Barry says:

    @Joe Gage: “Harry Reid used every tactic possible when he led the Senate to get legislation and nominees through.”

    No, Reid used what was necessary when the GOP used the filibuster as a standard tactic.

    Like or Dislike: Thumb up 3 Thumb down 0

  18. Barry says:

    @Joe Gage: ” We’re been in this vicious revenge cycle by both parties for over 20 years.”

    No.

    Like or Dislike: Thumb up 6 Thumb down 1

  19. Tyrell says:

    I never heard or read any serious, clear objections to Judge Gorsuch. I heard some minor concerns that were mainly about nuances and possible perceptions. As important as arguing about whether Pluto is a planet or not.
    The focus should have been on qualifications, education, and professionalism. Those should be the thongs that we look at.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. Erik says:

    @Tyrell: yes. And that is exactly why Garland should be on the court. To bad Republicans don’t have the honor to do that.

    Like or Dislike: Thumb up 7 Thumb down 1

  21. motopilot says:

    @Tyrell: There are other thongs I’d rather look at, but yes… Merrick Garland should have been considered on qualifications, education, and professionalism.

    Like or Dislike: Thumb up 7 Thumb down 1

  22. Pch101 says:

    @Tyrell:

    The sun rises in the east.

    Tyrell is ignorant.

    Some things never change.

    Like or Dislike: Thumb up 0 Thumb down 4

  23. bill says:

    @michael reynolds: yeah, just like congress, the senate, the white house and such…….losing sucks now doesn’t it!?
    but blame your brethren, they came up with the “the rules”- now they own them.

    so who’s going to be replaced next, ginsburg? bwahahaha………

    Like or Dislike: Thumb up 3 Thumb down 4

  24. Bob The Arqubusier says:

    Interesting.

    I wouldn’t have thought that “whining about how unfair the last fight was” would be a winning strategy for the next fight, but I may have to reconsider.

    I’m sure that Trump (the illegitimate president who was confirmed by the Electoral College and the Congress, as spelled out by the Constitution) will take this whining to heart, and will nominate a candidate more palatable to the whiners for his next vacancy. Maybe he’ll even have his first ever attack of conscience and nominate Judge Garland.

    If only Putin had not hacked the Senate elections and preserved the Republican majority there…

    Like or Dislike: Thumb up 2 Thumb down 7

  25. Bob The Arqubusier says:

    @bill: Don’t forget the most important rule:

    “Elections have consequences.”

    Look at all those seats across the nation the Democrats lost to Obama. Not just the House and the Senate, but the governorships and state legislatures.

    You keep losing elections, you keep losing seats, and you stop getting your way.

    So keep whining about that one election that you didn’t win. Pay no attention to the other thousand-plus ones that, had you not lost, would have made that one election a lot less meaningful.

    Or did Putin hack all those down-ticket elections, too?

    Like or Dislike: Thumb up 3 Thumb down 5

  26. Guarneri says:

    Heh. All the “smart” (snicker) Democrats had to do was nominate someone besides the worst candidate in the world and they get their SC nominee in. Instead they played slobbering zombie and nominated one of the most execrable people on the face of the earth for President. They shot their dircks off.

    Well, done. Well done. And even more amusing, she and the Dems are blaming everything and everyone under the sun instead of looking in the mirror. The definition of intelligence is not making…………..

    Like or Dislike: Thumb up 5 Thumb down 8

  27. An Interested Party says:

    Political victories are often ephemeral, especially in this country over the last decade or so…those who are gloating now will be sniveling in the future…and considering what a fu@k-up Trump is, that future may come quicker than anyone realizes…

    Like or Dislike: Thumb up 4 Thumb down 3

  28. Eric Florack says:

    @michael reynolds: sour grapes, huh?

    Yes, that’s what it comes down to.

    Like or Dislike: Thumb up 2 Thumb down 5

  29. Eric Florack says:

    @Guarneri: look, the same people who were blasting Gorsuch we’re supporting them just a short while back and had no objection to him whatsoever. So what the difference now?

    The reason is simple enough. The Democrats have been losing seats In both houses of Congress, in-state houses all across the country their losses have been staggering. They’ve got to do something the base period That’s all this is about. Sour grapes and keeping the faithful in line.

    Like or Dislike: Thumb up 0 Thumb down 5

  30. Tyrell says:

    @Eric Florack: Democrats supported and voted for him for an earlier court judgeship.
    Sorry, but I just don’t see how having direct elections for these judges could be any worse than the mess we go through now.

    Like or Dislike: Thumb up 3 Thumb down 0

  31. Bob The Arqubusier says:

    @Bob The Arqubusier: If I may clarify:

    My previous comment was not a rebuke to Bill, but an expansion of his sentiments.

    Like or Dislike: Thumb up 0 Thumb down 1

  32. george says:

    @grumpy realist:

    I think that sums it up perfectly.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. CSK says:

    A White House source told the Washington Examiner that Trump expects to make five more Supreme Court appointments.

    Like or Dislike: Thumb up 2 Thumb down 0

  34. Jack says:

    Gorsuch won the popular vote, I thought that mattered now to liberals. I guess the popular vote only matters when it’s their candidate.

    Like or Dislike: Thumb up 2 Thumb down 3

  35. grumpy realist says:

    @CSK: Yet another reason to look at emigrating.

    Like or Dislike: Thumb up 0 Thumb down 0

  36. Pch101 says:

    @Bob The Arqubusier:

    Thanks so much for clarifying that you agree with one of OTB’s dimmest bulbs. You obviously have your priorities straight.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. CSK says:

    @grumpy realist:

    Probably just typical Trump braggadocio. I can’t imagine this happening. He might get one more pick. Might.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. HarvardLaw92 says:

    @Pch101:

    It must have been Cracker Barrel Bring A Friend day :-)

    Like or Dislike: Thumb up 0 Thumb down 0

  39. Bob The Arqubusier says:

    @Pch101: So, you’re saying that Bill is really, really, really stupid… and right. And, by inference, you’re really, really, really smart… but can’t point out where Bill is wrong.

    Dude, I’m like TOTALLY sold. How do I sign up for your newsletter?

    Like or Dislike: Thumb up 1 Thumb down 1

  40. An Interested Party says:

    …but blame your brethren, they came up with the “the rules”- now they own them.

    What a load of complete horseshit…no Democratically-controlled Senate did to a president what Mitch McConnell and his co-conspirators did to Obama concerning the Garland nomination…do gloat now, but I suspect you’ll be whining at some point in the near future…

    So, you’re saying that Bill is really, really, really stupid… and right.

    Umm, no…the former is correct but certainly not the latter…as I pointed out above, he’s quite mistaken…I’ll be happy to have you sign up for my newsletter…

    Like or Dislike: Thumb up 1 Thumb down 0

  41. Pch101 says:

    @Bob The Arqubusier:

    Judging from your eagerness to triple down on stupid, you must be a conservative.

    Like or Dislike: Thumb up 1 Thumb down 1

  42. Bob The Arqubusier says:

    @Pch101: And judging by your exclusive focus on personal insults, you must be… nah, not gonna go there. I’m better than that.

    Which, obviously, makes me better than you. A remarkably low threshold, I’ll admit, but I’ll take it.

    Like or Dislike: Thumb up 2 Thumb down 2

  43. Vince Clancy says:

    @Joe Gage: This inflammatory partisan politics comes down to us the voters; so we are the ones where blame should be placed. Echoing our feelings by voting in totally inane candidates by party line ONLY deserves the punishment we are receiving, which, we all can see, is totally bad government.

    Like or Dislike: Thumb up 1 Thumb down 0

  44. Pch101 says:

    @Bob The Arqubusier:

    If you want to be taken seriously rather than mocked, then you’ll have to earn it. Spewing right-wing blogosphere talking points about Harry Reid that you copied from Twitter is not an example of earning it.

    Like or Dislike: Thumb up 1 Thumb down 0

  45. al-Ameda says:

    @Jack:

    Gorsuch won the popular vote, I thought that mattered now to liberals. I guess the popular vote only matters when it’s their candidate.

    The Gorsuch nomination was put to the voters in a national plebiscite?

    Like or Dislike: Thumb up 2 Thumb down 0

  46. Pch101 says:

    @al-Ameda:

    If Jack had any brains, then he would know that the Republicans control the Senate in spite of having received fewer popular votes.

    But of course, Jack is an idiot, so he doesn’t.

    Like or Dislike: Thumb up 3 Thumb down 0

  47. Bob The Arqubusier says:

    @Pch101: So, to fit in with the cool kids, I should emulate you and parrot talking points from left-wing media (like Talking Points Memo, just to pick the best-named one) and, more often, issue juvenile insults?

    Thanks for the advice, but I’ll pass on the honor.

    Like or Dislike: Thumb up 0 Thumb down 2

  48. Bob The Arqubusier says:

    @Pch101: If Jack had any brains, then he would know that the Republicans control the Senate in spite of having received fewer popular votes.

    But of course, Jack is an idiot, so he doesn’t.

    The rules for controlling the Senate aren’t exactly secret, and haven’t been for a long time. I think “idiot” applies more to someone who, upon losing, starts whining about how the rules should have been different and, by some other arbitrary and incredibly convenient measure, he really won — or should have.

    “Read the rules of the game, then play to win by those rules” is not a terribly complicated concept, Pch. Just because your side hasn’t actually done it for most of a decade doesn’t necessarily mean that your side is filled with idiots.

    It’s highly indicative, but not proof.

    Like or Dislike: Thumb up 0 Thumb down 2

  49. Pch101 says:

    @Bob The Arqubusier:

    So many words, so little content.

    Verbosity isn’t the same thing as intelligence.

    Like or Dislike: Thumb up 1 Thumb down 0

  50. Bob The Arqubusier says:

    @Pch101: OK, let me make it very, very simple for you. With luck, simple enough for you to understand.

    The Democrats became the minority party in the Senate in 2015. They’ve had two years to learn how to act as the minority, and have shown that they have wasted those two years.

    So, instead of learning how to work as the minority and how to regain the majority, you want them to keep whining and re-fighting battles they’ve already lost and complaining about how the rules (which haven’t changed in a very, very long time) aren’t fair.

    You keep bringing up “popular vote” and “vote totals” as if it means anything. If you had brought up those arguments before the election, you’d have the slightest shred of integrity. But instead, you come across as a whiny loser who’s grasping for any excuse you can find to avoid admitting that your side got its ass kicked, and for extremely good reasons.

    Please, keep it up. It’s delicious.

    Like or Dislike: Thumb up 0 Thumb down 0

  51. Pch101 says:

    Jack obviously doesn’t know what “popular vote” means. You would have to be a buffoon to defend him.

    And you wonder why I can’t take conservatives seriously.

    Like or Dislike: Thumb up 1 Thumb down 0