It was a chatty ride to preschool with my Girl Child yesterday morning. We watched President Trump’s announcement of his SCOTUS nominee, Tenth Circuit Judge Neil Gorsuch last night, and she was engaging me in a game of rapid fire questions in an attempt to sort out the meaning of “nominee” in her four year old brain. What does that mean? What if they [Congress] say “No?” When do we get the real answer? And (my favorite): Will Judge Ruth still get to say the rules? (I Dissent has made her a known personality in our house).
Like any parent, I didn’t have all the answers. Like any lawyer, I did my best to explain the uncertainties. Here’s how it went:
What Does Trump’s Nomination of Gorsuch Mean?
It means that it is likely, but not certain, that Gorsuch will fill the ninth seat on the Supreme Court left vacant by Justice Antonin Scalia’s death one year ago. While GOP senators have applauded the pick, ABC News swiftly released a statement by the DNC expressing that Gorsuch’s nomination “raises some very serious questions.” Adding to political opinions is resentment over Senate Republicans’ refusal to hold confirmation hearings for President Obama’s nominee Judge Merrick Garland, making it difficult to predict what efforts, if any, Senate Democrats might take to block Gorsuch’s confirmation.
What if Congress Says No?
I expect this question from the Girl Child. At this age it’s critical to weigh the consequences of a “No.” There are 52 Republicans in the Senate, and Democrats could effectively filibuster the nomination by forcing Republicans to gather 60 votes for confirmation. Of course if Democrats try to block the nomination, Senate Republicans could change Congressional rules to extend the nuclear option to Supreme Court justices (currently excluded from the rule), which would lower the threshold for confirmation to a simple majority, or 51 votes.
When Do We Get the Real Answer?
Recent SCOTUS confirmations have taken approximately 2 ½ to 3 months. Given the Congressional climate, it is unlikely that Gorsuch will hear cases this term if confirmed.
And What About Justice Ginsberg?
As for Justice Ginsberg, she’ll still have input into “making the rules,” but the results may be different than before. Or maybe they won’t. There’s been much comparison between Gorsuch and his predecessor, Justice Scalia, whose rulings exhibit similar judicial philosophies, interpreting legal provisions as they were originally understood. Key decisions from Gorsuch’s Tenth Circuit career include:
- Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016)- in a noteworthy concurrence, Gorsuch questioned the propriety of the Chevron doctrine which provides that courts must defer to agency interpretations of ambiguous statutory language.
- Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013)– Gorsuch voted with the majority holding that federal law prohibits the Department of Health and Human Services from requiring closely-held, for-profit secular corporations to provide contraceptive coverage as part of their employer-sponsored health insurance plans.