Pass with Nuclear Option: Gorsuch will Be Seen in Dim Light as the New Kid Who Broke Rules & Tradition to Get In

CNN reports a third Democrat Party Senator has decided to back Trump’s GOP nominee of Neil Gorsuch to the Supreme Court. The backing has spark concern at the Democrat Party & supporters, that stopping “Conservative Values” sweeping across America & more so if Gorsuch gets the approval, will be difficult to stop.

On the line, as tools in the struggle between the Democrats and GOP is the Democrats threat to filibuster and GOP’s nuclear option, meaning changing the Senate rules to pass Gorsuch. However, critics points out, if Gorsuch wins through Nuclear Option, his stature in the Supreme Court will be muted, as he will be seen as cheating by breaking rules to get in.

The Supreme Court of the United States is the highest federal court of the United States. Established pursuant to Article III of the United States Constitution in 1789, it has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases. In the legal system of the United States, the Supreme Court is the final interpreter of federal constitutional law, although it may only act within the context of a case in which it has jurisdiction.

The Court normally consists of the Chief Justice of the United States and eight associate justices who are nominated by the President and confirmed by the Senate. Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment (though no justice has ever been removed).[1] In modern discourse, the justices are often categorized as having conservative, moderate, or liberal philosophies of law and of judicial interpretation. Each justice has one vote, and while many cases are decided unanimously, the highest profile cases often expose ideological beliefs that track with those philosophical or political categories. The Court meets in the United States Supreme Court Building in Washington, D.C.

CNN reports (source)

Sen. Joe Donnelly announced Sunday that he will support the nomination of Judge Neil Gorsuch to the Supreme Court. Donnelly is the third Senate Democrat to support Gorsuch, joining Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.

CNN’s whip list has 36 Democrats saying or suggesting they will filibuster Gorsuch’s nomination. Another two Democrats say they’ll oppose Gorsuch in the final confirmation vote, but it’s unclear where they will stand on a potential filibuster. In his statement, Donnelly added the Senate “should keep the current 60-vote threshold for Supreme Court nominees.”

Earlier Sunday, Senate Minority Leader Chuck Schumer said in an interview on NBC’s “Meet the Press” that he would be able to unite enough Democrats to deny Gorsuch the 60 votes the Republican leadership will need to overcome a filibuster. “It’s highly, highly unlikely that he’ll get 60,” Schumer said.

But Senate Majority Leader Mitch McConnell pledged on the same show that Gorsuch would soon be seated on the high court. “Neil Gorsuch will be confirmed this week,” McConnell said. “How that happens really depends on our Democratic friends. How many of them are willing to oppose cloture on a partisan basis to kill a Supreme Court nominee.”

If Schumer is able to halt the vote, McConnell could move to change the rules of the Senate by invoking what is referred to as the “nuclear option,” which would allow the leadership to overcome a filibuster of Supreme Court nominations with a simple majority, or at least 51 votes. Republicans hold a slim, 52-48 majority in the chamber. McConnell announced last week that, regardless of Schumer’s filibuster threat, the Senate would vote on Gorsuch this Friday before lawmakers leave Washington for a two-week recess.

Who is Gorsuch?

In February 2016, Associate Justice Antonin Scalia of the Supreme Court of the United States died, leaving a vacancy on the highest federal court in the United States. Article II of the U.S. Constitution gives the president the power to nominate justices to the Supreme Court, subject to the “advice and consent” of the Senate.[2] Scalia’s seat remained open until the beginning of the Trump administration in January 2017, as the Senate refused to consider outgoing President Barack Obama‘s nomination of Merrick Garland. Gorsuch’s name came to President Trump’s attention via Leonard Leo.[3] On January 31, 2017, President Donald Trump announced his selection of Judge Neil Gorsuch for the position of Associate Justice to replace the late Justice Scalia. Gorsuch’s nomination was transmitted to the United States Senate on February 1, 2017.[4]

When nominated, Gorsuch was a sitting judge of the United States Court of Appeals for the Tenth Circuit, to which he had been appointed by George W. Bush. If confirmed, Gorsuch would be the youngest sitting Supreme Court justice since Clarence Thomas, as well as the first Protestant to sit on the Court since John Paul Stevens’s retirement in 2010.[5]

Death of Antonin Scalia

In 1986, President Ronald Reagan nominated D.C. Circuit Judge Antonin Scalia to the Supreme Court to fill the associate justice vacancy caused by the retirement of Chief Justice Warren Burger and the subsequent elevation of William Rehnquist to Chief Justice. Scalia was unanimously confirmed by the Senate and became a part of the court’s conservative bloc, often supporting originalist and textualist positions.[6] On February 13, 2016, Justice Scalia was found dead at the Cibolo Creek Ranch in Shafter, Texas.[7][8] Scalia’s death marked only the second time in sixty years that a Supreme Court justice had died in office, the other being Chief Justice Rehnquist in 2005.[9] Scalia’s death was also the seventh occasion since 1900 in which a seat on the Supreme Court of the United States was vacant during a year in which a presidential election was set to occur.[10]

Nomination of Merrick Garland

Main article: Merrick Garland Supreme Court nomination

At the time of Scalia’s death, the sitting president was Barack Obama, a member of the Democratic Party, while the Republican Party held a 54–46 seat majority in the Senate.[11] Because of the composition of the Supreme Court at the time of Scalia’s death, and the belief that President Obama could replace Scalia with a much more liberal successor, some believed that an Obama appointee could potentially swing the Court in a liberal direction for many years to come, with potentially far-reaching political consequences.[12] President Obama ultimately nominated Merrick Garland on March 16, 2016. The Republican-controlled Senate refused to consider Garland’s nomination for 293 days, until it expired when the 114th Congress adjourned in January 2017.[13] The defeat of Garland’s nomination left Scalia’s seat vacant when President Trump took office in January 2017. Many Democrats reacted angrily to the Senate’s refusal to consider Garland, with Democratic Senator Jeff Merkley of Oregon describing the vacant seat as a “stolen seat.”[14] However, Republicans such as Iowa Senator Chuck Grassley argued that the Senate was within its rights to refuse to consider a nominee until the inauguration of a new president.[15]


During the 2016 presidential campaign, while Garland remained before the Senate, Trump released two lists of potential nominees. On May 18, 2016, Trump released a short list of eleven judges for nomination to the Scalia vacancy.[16] In September 2016, Trump released a second list of ten possible nominees, this time including three minorities.[17] Both lists were assembled by the Federalist Society and the Heritage Foundation.[18] After winning the presidential election, Trump and White House Counsel Don McGahn interviewed four individuals for the Supreme Court opening, all of whom had appeared on one of the two previously-released lists.[18] The four individuals were federal appellate judges Thomas Hardiman, William H. Pryor Jr., and Neil Gorsuch, as well as federal district judge Amul Thapar.[18] All four had been appointed to the federal bench by President George W. Bush. While Pryor had been seen by many as the early front-runner due to the backing of Attorney General Jeff Sessions, many evangelicals expressed resistance to him, and the final decision ultimately came down to Gorsuch or Hardiman.[18] Hardiman had the support of Trump’s sister, Judge Maryanne Trump Barry,[18] but Trump instead chose to nominate Gorsuch.[19]


President Trump announced the nomination of Gorsuch on January 31, 2017. The nomination was formally transmitted to the Senate on February 1, 2017.[20] His nomination is now pending before the Senate Judiciary Committee. At age 49, Gorsuch would be the youngest sitting Supreme Court justice since Clarence Thomas. Having clerked for Anthony Kennedy, Gorsuch would also be the first Supreme Court Justice to have previously clerked for a Justice still sitting on the court.[21]

At the time of the nomination, Gorsuch was described as solidly conservative, but likely to be confirmed without much difficulty.[22][23][24] Richard Primus of Politico described Gorsuch as “Scalia 2.0” due to ideological similarities,[25] and a report prepared by Lee Epstein, Andrew Martin, and Kevin Quinn predicted that Gorsuch would be a “reliable conservative” similar to Scalia.[26]


Gorsuch’s nomination will first be considered by the Senate Judiciary Committee, which holds hearings on all federal judicial nominations and decides whether or not to send nominations to the full Senate for a final confirmation vote.[27] The committee consists of 11 Republican Senators and 9 Democratic Senators, and is chaired by Republican Chuck Grassley. In February 2017, the committee requested the Justice Department to send all documents they had regarding Gorsuch’s work in the George W. Bush administration. As of March 9, 2017, the Justice Department had turned over more 144,000 pages of documents and, according to a White House spokesman, more than 220,000 pages of documents in total had been sent to the committee.[28] Gorsuch’s confirmation hearings started on March 20, 2017, and are expected to last up to four days.[29][30]

Confirmation Hearing:

On the first day of hearings, Senators largely used their opening statements to criticize each other, with Ranking Member Dianne Feinstein complaining of the “unprecedented treatment” of Judge Merrick Garland, while Colorado Senator Michael Bennet felt “two wrongs don’t make a right”, and Senator Ted Cruz insisted President Trump’s nomination now carried “super-legitimacy”.[31] Democratic Senators repeatedly criticized Gorsuch for a case where the Tenth Circuit ruled in favor of a truck driver who had abandoned his trailer in inclement conditions, with Senator Dick Durbin telling Gorsuch the weather was “not as cold as your dissent”.[31]

In his own 16-minute opening statement, Gorsuch repeated his belief that a judge who likes all his rulings is “probably a pretty bad judge”, and noted that his large record included many examples where he ruled both for and against disadvantaged groups.[31]

On the second day of hearings Gorsuch responded to questions by committee members. When Chairman Chuck Grassley asked Gorsuch if he would “have any trouble ruling against the president who appointed you”, Gorsuch replied, no, and “that’s a softball”.[32] Senator Cruz used his time to ask Gorsuch about The Hitchhiker’s Guide to the Galaxy, basketball, and mutton busting.[32] When asked by Senator Lindsey Graham how he would have reacted if during his interview at Trump Tower the President had asked him to vote against Roe v. Wade, Gorsuch replied “I would have walked out the door”.[32]

Democratic Senators continued to criticize Gorsuch on his dissent in the case involving a truck driver, with Ranking Member Feinstein asking him “will you be for the little men” and Senator Al Franken telling the judge his position was “absurd”.[32] Senator Patrick Leahy used his time to praise Judge Garland, criticize those policies of President George W. Bush that Gorsuch had defended at the Justice Department, and to ask Gorsuch how he would rule in Washington v. Trump.[32] Gorsuch refused to comment on active litigation, explained that Justice Department lawyers must defend their client, but did say that Garland is “an outstanding judge” and that Gorsuch always reads his opinions with “special care”.[32]

On the third day of hearings Gorsuch continued to answer questions by committee members. Senator Orrin Hatch asked Gorsuch if “you think your writings reflect a knee-jerk attitude against common-sense regulations”, to which the judge replied “no”.[33] In response to Senator Sheldon Whitehouse’s question of if the judge would be subject to agency capture by big business, Gorsuch replied “nobody will capture me”.[34] Senator Franken laughed out loud when Senator Jeff Flake asked Gorsuch if he had ever served on a jury; Gorsuch said he had.[33] Senator Flake then asked Gorsuch if he would rather fight “100 duck-sized horses or one horse-size duck”, to which Gorsuch avoided giving a firm answer.[33]

Senator Amy Klobuchar told Gorsuch he employed only “selective originalism”.[34] Gorsuch then replied to a question by Ranking Member Feinstein on the Equal Protection Clause by saying, “no one is looking to return us to horse and buggy days” and that “it matters not a whit that some of the drafters of the Fourteenth Amendment were racists. Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote.”[34]

During Wednesday’s hearings, the Supreme Court unanimously reversed the Tenth Circuit in an Individuals with Disabilities Education Act case Gorsuch had not been involved in, although in 2008 he had written for a unanimous panel applying the same circuit precedent.[34] Still, Senate Minority Leader Chuck Schumer said this demonstrated “a continued, troubling pattern of Judge Gorsuch deciding against everyday Americans – even children who require special assistance at school.”[34]

After twenty hours of questioning over two days, observers viewed Gorsuch’s confirmation as inevitable.[34]

Full Senate:

Gorsuch must win a simple majority vote of the full Senate to be confirmed, but the opposition can prevent a vote from being held by the use of a filibuster, which requires a 60-vote super-majority to be defeated. At the time of the Gorsuch nomination, Republicans held 52 seats in the 100-seat chamber, as well as the potential tie-breaking vote in Vice President Mike Pence.[35] After nominating Gorsuch, President Trump called on the Senate to use the “nuclear option” and abolish the filibuster if its continued existence would prevent Gorsuch’s confirmation.[36] While many Republican Senators such as John McCain expressed reluctance about abolishing the filibuster, others such as John Cornyn argued that the GOP majority should reserve all options necessary to confirm Gorsuch.[35] Other political commentators have proposed that GOP Senate leadership adopt a strategic use of Standing Rule XIX to avoid the elimination of the filibuster.[37][38]

Democratic opposition focused on complaints saying that Scalia’s seat should have been filled by President Obama.[39][40] In addition, Democratic Senators Al Franken, Bernie Sanders, Elizabeth Warren and Kamala Harris criticized aspects of Gorsuch’s record, especially in relation to women’s rights, his perceived anti-trade union judgments, and opposition to campaign finance reform. Democratic senator Jeff Merkley said he would do “anything in his power” – including the power of filibustering – to oppose Gorsuch’s nomination.[41] Other Democratic Senators including Joe Manchin,[42] Heidi Heitkamp,[43] and Joe Donnelly support Gorsuch.[44] Senator Chris Coons has given mixed messages on cloture.[45]

Norm Eisen, who was named by Obama to be Special Counsel for Ethics and Government Reform in the White House and Ambassador to the Czech Republic, has endorsed Gorsuch.[46] Eisen was a classmate of both Gorsuch and Obama at Harvard Law.[46] Neal Katyal, who served as Acting Solicitor General of the United States during the Obama Administration and who is currently a law professor at Georgetown University Law Center, has endorsed Gorsuch for approval to the Supreme Court.[47]

The National Rifle Association, the National Shooting Sports Foundation, the Second Amendment Foundation and other gun rights groups endorsed Gorsuch,[48][49][50] while Americans for Responsible Solutions, the Law Center to Prevent Gun Violence and other gun control proponents have opposed his nomination.[51][52] House Minority Leader Nancy Pelosi said Gorsuch “comes down on the side of felons over gun safety”. Politifact called her statement misleading and said that Gorsuch’s past rulings do not “demonstrate that he thinks more felons should be allowed guns than what is already permitted under the law”.[53]

The American Civil Liberties Union raised concerns about Gorsuch’s respect for disability rights.[54] The Secular Coalition for America, Freedom from Religion Foundation and Union for Reform Judaism all voiced strong concerns with Gorsuch’s nomination.[55]

See also


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