Neil Gorsuch nomination vote in committee sets up Democratic filibuster

Ben Jacobs and Lauren Gambino in Washington
Supreme Court justice nominee Neil Gorsuch during a Senate judiciary committee hearing on 21 March. Photograph: Susan Walsh/AP

The US Senate appeared on the verge of going “nuclear” on Monday after supreme court nominee Neil Gorsuch was approved in committee and Democrats secured enough support to filibuster the vote on his confirmation.

This 41-vote threshold was reached just before the Senate judiciary committee approved Gorsuch’s nomination by a party-line vote of 11-9. This sets the stage for a showdown on the Senate floor later in the week, which could involve the so-called nuclear option, a change to Senate rules that would prevent filibusters of nominees to the supreme court.

A supermajority of 60 senators is required to avoid a filibuster, which involves extending debate indefinitely on a nominee or a bill. And with three previously undecided Democrats having announced their support for a filibuster during the judiciary committee’s hearing on Gorsuch’s nomination – the committee’s ranking Democrat, Dianne Feinstein of California; Patrick Leahy of Vermont; and Chris Coons of Delaware – there is no mathematical path for Gorsuch to reach that threshold.

Currently, the Senate has 52 Republicans and 48 Democrats. Only four Democrats – including three moderates in red states who are up for re-election in 2018, and Michael Bennet, from Gorsuch’s home state of Colorado – have announced their support for Trump’s nominee to the high court.

However, Republicans are preparing to invoke the “nuclear option”, which involves changing Senate precedent by a simple majority vote. This was first done by the then Senate majority leader, Harry Reid, in 2013 to end filibusters on all nominees save those for the supreme court.

The Republican Lindsey Graham of South Carolina noted before Monday’s vote that there had been only one filibuster of a supreme court nominee in US history, and vowed that that would remain true at the end of the week. “If we have to, we will change the rules, and it looks like we are going to have to,” Graham said, but he noted: “I hate that. I really, really do.”

Monday’s vote to advance Gorsuch’s nomination took place in a highly polarized partisan atmosphere, the result of Republicans’ refusal to grant a hearing to Merrick Garland, who was nominated to fill the open seat on the court by Barack Obama in 2016. Patrick Leahy, the former chair of the committee, had described the Republican action as “a shameful stain on the proud history of this committee”.

Republicans touted Gorsuch’s merits and blamed Democrats for the partisan showdown. John Cornyn of Texas, the No 2 Republican in the Senate, blamed Democrats during the George W Bush administration for the rise in judicial filibusters and partisanship. He described the nuclear option as simply a return to “status quo ante” before what he labeled Democratic obstruction.

In announcing his decision to support a filibuster, Coons pushed back on the Republican argument that it would be the first partisan filibuster in the history of the supreme court. (The nomination of Justice Abe Fortas to be elevated to serving as chief justice in 1968 was filibustered by members of both parties over ethical questions.) The Delaware Democrat noted that while this was “technically correct, I wonder whether a seven-month refusal to hold hearings is not the longest partisan filibuster in this committee ever”.

Gorsuch’s hearing before the Senate judiciary committee lasted three days and included several testy exchanges, but ultimately failed to grab national attention as some supreme court hearings have in the past. Leahy described Gorsuch’s performance over the several days of hearings as “excruciatingly evasive”.

Democrats sharpened their attack lines against Gorsuch in an attempt to paint him as a friend of corporate and powerful interests. In one instance, Democrats faulted Gorsuch for ruling that a company was justified for firing a truck driver who decided to abandon his unheated vehicle filled with company cargo to seek safety in freezing temperatures.

Gorsuch, a staunchly conservative federal appeals court judge from Colorado, subscribes to the judicial philosophy of originalism, a way of interpreting the constitution that he shares with the justice he hopes to replace, Antonin Scalia. A graduate of Columbia University and Harvard Law School, Gorsuch also received a doctorate from Oxford University, which he attended as a Marshall Scholar. At 49 years old, Gorsuch is one of the youngest nominees to the country’s highest court and could potentially hold his seat for decades.

His confirmation would mark the first major win for Trump, who selected Gorsuch from a list of about 20 judges recommended by conservative legal activists during the campaign. On the trail, he repeatedly promised to nominate a “pro-life” justice with conservative views. Gorsuch, however, has not directly ruled on issues of abortion access, and declined to elaborate on his personal views during the three-day hearing before the judiciary committee.

Ahead of the panel vote, Trump made the case for his supreme court nominee in a recorded video message with footage of Gorsuch admiring a portrait of president Abraham Lincoln. In the video, Trump called Gorsuch an “man who respects the law” and said his confirmation is vital to “preserving our republic”.

In announcing his selection of Gorsuch on 31 January, Trump said that the judge has “outstanding legal skills, a brilliant mind, tremendous discipline and has earned bipartisan support” and described him as “a man who our country really needs, and needs badly, to ensure the rule of law and the rule of justice”.

Gorsuch is the second nominee to the seat vacated by Scalia’s death in February 2016. In March of that year, Barack Obama nominated Merrick Garland, a 63-year-old appellate widely considered to be moderate. Republicans refused to hold a hearing on Garland, and many senators refused to meet with him. The nomination was withdrawn once Obama left office, and Garland has since returned to his position as chief judge of the US court of appeals for the District of Columbia circuit.

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