President Trump has announced Neil Gorsuch as his nominee for an open seat on the U.S. Supreme Court. Now the speculation begins about how senators in each party might approach the confirmation process, given the strongly partisan atmosphere, the denial of former President Obama’s nominee Merrick Garland and the politics involved in every court appointment. U. of I. political scientist Alicia Uribe-McGuire’s research focuses on the politics of federal judicial appointments, including the Supreme Court. She spoke with News Bureau social sciences editor Craig Chamberlain.
What’s the biggest unknown in this confirmation process?
President Trump selected a well-qualified, very conservative nominee, so there is no expectation of resistance from the Republican majority in the Senate. The biggest unknown will be the response from Democrats in the Senate. Many have promised to filibuster a Trump nomination in response to the Republican majority’s treatment of Merrick Garland. Coming after the Democrats’ implementation of the “nuclear option” in 2013, which removed the filibuster option on executive branch appointments and lower federal court appointments, this would be a highly symbolic move.
That action on the filibuster exempted Supreme Court nominations, so this is an open door for the Democrats and really the only procedural move in their toolbox. Because the 2013 implementation was in response to Republican filibusters, this might make the Republicans quick to threaten the same in response to a filibuster from the Democrats over this nominee. The Democrats will have to decide whether this nomination is worth the fight.
A filibuster would be a particularly risky move since any subsequent vacancy that might open during this presidency would likely be from one of the most senior members on the Supreme Court – Anthony Kennedy, Ruth Bader Ginsburg or Stephen Breyer – which would have the potential to greatly shift the ideology of the court, as opposed to this nomination, which would not result in any real change.
How does the Gorsuch nomination match with expectations and with court appointments in recent decades?
The Neil Gorsuch nomination is pretty much exactly what political science models would predict: the replacement of a solid conservative with another solid conservative by a Republican president with a Republican-controlled Senate. Also, consistent with what we’ve seen for the majority of nominees to the Supreme Court since the 1980s, Gorsuch is a sitting federal judge. Almost 80 percent of nominees since the 1980s were promoted from a federal circuit court. This has become an almost expected norm for Supreme Court nominations, and until Elena Kagan was confirmed in 2010, no justice had been confirmed without federal court experience since Sandra Day O’Connor in 1981.
There are two big reasons why this has become the norm. The first is quality. President Trump even hinted at such in his nomination announcement, saying that he had looked for the most qualified individual. Qualified judges are harder to reject for opposing senators. The second reason we have seen so many federal judges promoted is because during divided government, a promotion allows for bargaining over a lower court position in exchange for the president appointing who he wants to a higher court. And many of the judges appointed over the last 30 years have been appointed during divided government.
Your research has focused on the political trade-offs involved in federal court appointments, especially when different parties control the Senate and the presidency. With the Democrats controlling neither, what real power do they have here? And what power do they have to influence lower court appointments down the road?
Democrats do not hold much power. For this appointment, they still have the filibuster on their side, but given the excitement of Republicans over this nominee, this will likely only delay the inevitable. As for lower court appointments, they hold a little power, but again, not much. There is a long history of deferring to home-state senators for lower court nominations, so where the senators are Democrats, they will still retain some power to block individual nominations for citizens from their state. They do this largely through placing holds on individual nominations. Since a lot of Senate work is done through unanimous-consent agreements, holds can prevent certain things from going forward. Without the power of the filibuster for lower court nominations, however, their powers are greatly diminished.