Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

Judge Neil Gorsuch is the SCOTUS nominee, and early indication suggests this will be a contentious process. The ragtag gang of the usual suspects give their thoughts on the last 48 hours and where this is heading. Hint: nuclear.

 

Advice & Consent 23: Neil Gorsuch, Nuclear Nominee

Direct download: Advice & Consent 23: Neil Gorsuch, Nuclear Nominee (mp3)

Neil Gorsuch, Nuclear Nominee: the record

AFJAC fact sheet (PDF) to tide you over. More in future episodes.

The Reaction

Dems

Trump *barely* won the office and actually lost the popular vote, so a consensus mainstream SCOTUS nom is in order. And we measure mainstream with, say… hmmm… lets put a round number on it… 60 votes. Oh and also if you (meaning the GOP) think we need a deep reason, how about “it was you that truly f*cked with the norms,” and (with apologies to Good Will Hunting)…. “Do you like apples? HOW DO YOU LIKE THEM APPLES!”

GOP

Universal, fawning, near drooling adulation and… “Hey! This 60 vote thing is bullsh*t. Let’s vote! We need 9! #doyourjob”

Past votes for SCOTUS seats (US Senate)

Trump’s Supreme Court Reality Show Was Not a Distraction, It was a capstone to a yearlong campaign to degrade the law and the Constitution. Dahlia Lithwick

SCOTUSBlog review of Gorsuch’s cases on key areas

Process update

The path ahead for Neil Gorsuch, Trump’s Supreme Court nominee (WaPo)

Filibuster and the nuclear option

 

Adam: My thoughts on the endgame are spelled out in my Facebook post. Ds will inevitably filibuster.  There are enough with eyes on 2020 (Booker, esp., Warren, but maybe dark horses like Gillibrand) and they will filibuster and force a cloture vote.  It will be very hard to find 8 Ds to break ranks as shown by your whip count, especially given base anger over Garland/Citizens United/Bush v. Gore.  I think even Ds up for reelection will have to worry about being primaried if they break.  

Rs can’t lose more than 2 votes and they aren’t assured of it. But there’s NO chance that Rs will let Ds filibuster all nominees for 4 years.  What would have to happen is a re-born Gang of 14 that would broker a deal of someone less conservative (or less clearly conservative) than Gorsuch but much more than Garland.  Frankly, this would have been the likely outcome of a Pryor nomination or a nomination in the context of the Texas abortion law being struck down, but it’s less sure without that.

QUESTIONS: Do pro-choice Collins and Murkowski really want to put another firm anti-Roe voice on the Court? Where would a third possible break come from? (Remaining Gang of 14’ers, McCain, who has been adamant about the filibuster, Graham? Heller? Flake?) Would they settle for someone with less of a clear record?  Since we were basically stumped on a previous episode to find a nominee who a compromise candidate might be, can the Rs pick one?  The left pushed for Mukasey in 2005, but after his term as AG, it would be hard to imagine that happening again (plus he’s 75 now, and he believes water-boarding isn’t torture, and he enthusiastically supported Jeff Sessions for AG).  Here’s a possibility:  http://www.acslaw.org/acsblog/draft-prado-effort-launched

Lena: This any nominee should be able to meet the 60 vote threshold – an indication the person receives bipartisan support which is incredibly important now.

Layers to consider:

  1. Support/Oppose Nominee
  • Ds Positions:
    • Give Garland vote 1st
    • No because this is a stolen seat
    • Review the record, give full hearing and up-or-down vote
  • Rs Positions:
    • Assuming lockstep but I think the pressure to stand up against extremeism and Trump will grow over the next few months
  • Factors:
    • Institutionalists who don’t want to change rules
    • 2018 Senate relections (8 Rs, 25 Ds (23 Ds, 2 Is who caucus w/Ds)
    • 2020 aspirations
  1. Filibuster Reform (change threshold from super majority to simple majority)
  • Ds more likely than ever to do this
  • Some Ds will be harder to convince
  • Probably a matter of timing
  • Rs will likely change filibuster rules then

Dan: Whatever happens, the Democrats at the very least have to fight like they’ve never fought before.  And, assuming there are hearings, they need to cross examine Gorsuch in a far more expert manner than they’ve shown in the past (with a few exceptions).  Senate Judiciary needs to bring in the heaviest hitters on the left, like Stanford’s Pam Karlan (who should be on the Court, herself) for both substantive and stylistic training sessions, to make these hearings and this process a politically powerful teaching moment.

Tim: Agree with everyone… hard to see this not going nuclear following very vigorous hearings and floor debate. There’s no incentive for the Ds to hold their powder and none for Rs to hold off.

We’re in a new SCOTUS paradigm. With the “success” of the Garland block, and assuming the political environment remains this stratified, we should only expect any POTUS to get a SCOTUS nom through if the POTUS and Senate majority are the same party. This could lead to a SCOTUS with smaller numbers for long stretches of divided government.

Lena:

What Usually Happens & When for Supreme Court Nominees?

Based on Supreme Court nominations since 1975.

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