Nearly a full year after Justice Antonin Scalia's death left the Supreme Court shorthanded, President Trump nominated federal appeals court Judge Neil Gorsuch to fill the void Tuesday night, setting off a pitched battle over the direction of the nation's highest court
Trump was unveiling his nominee to the nation on live television from the East Room of the White House after a day filled with palace intrigue, during which the media mapped the whereabouts of Gorsuch, from Colorado, and federal appeals court Judge Thomas Hardiman of Pennsylvania, another favorite for the seat.
Gorsuch, 49, is a Scalia acolyte who believes judges should interpret laws as they are written and enforce the Constitution as the nation's framers intended. He writes with a Scalia-like flair and has degrees from Columbia, Harvard and Oxford.
Gorsuch and Hardiman emerged from a list of 21 people Trump was considering, topped initially by federal appeals court judges William Pryor of Alabama and Diane Sykes of Wisconsin. But Pryor has a more controversial record on issues such as abortion and gay rights, possibly making Senate confirmation risky, and the 59-year-old Sykes projects to fewer years on the bench.
The White House filled the East Room with Washington's movers and shakers for the dramatic announcement, which was being compared to Trump's TV show, "The Apprentice." On hand were Vice President Pence, top Republican leaders in Congress, and Scalia's widow, Maureen. Democratic leaders declined their invitations.
"This particular choice is one that the president takes very seriously," White House press secretary Sean Spicer said Tuesday afternoon. "He knows it will impact the course of our country’s jurisprudence for generations to come."
Trump's nominee will face intense opposition from Senate Democrats and liberal interest groups, which already have scheduled a 9 p.m. protest at the Supreme Court to follow the announcement.
Republicans hold a 52-seat majority in the Senate, large enough to block former president Barack Obama's choice of federal appeals court Judge Merrick Garland last year but not sufficient to overcome a filibuster if Democrats seek to bottle up the nomination as revenge for what many consider a stolen Supreme Court seat. Unless Trump can win over eight of them, Republicans will have to change the Senate's rules, eliminating the 60-vote threshold needed to bring the nomination to the floor. Trump endorsed such a move last week.
The White House is hoping to have the seat filled in time for the court's April sitting, the last of the 2016 term, when several cases could be considered involving such issues as religious liberty and transgender rights. That likely was one reason for announcing the nomination two days earlier than initially planned.
“There’s a lot of cases that I think are in the cue right now that have the potential to be 4-4 (votes)," Spicer said. "I think the idea is to get this individual confirmed as soon as possible, just to get the docket moving. That’s probably the biggest priority right now.”
Conservative interest groups were preparing the initial phase of what they said would be a $10 million advertising campaign on behalf of the nominee. The first ads will go up in four states that Trump won decisively in November where Democratic senators face tough re-election battles: Indiana, Missouri, Montana and North Dakota.
Replacing Scalia will not shift the court ideologically from where it was a year ago, but it will put conservatives one seat short of a commanding majority. With the seat filled, the longest-serving justice, Anthony Kennedy, once again will be the man in the middle — siding with conservatives in most cases but occasionally with liberals on issues such as abortion, affirmative action and gay rights.
Still, Democrats understand demographics: Kennedy, appointed by President Ronald Reagan in 1988, is 80 years old and considering retirement. President Bill Clinton's two justices, Ruth Bader Ginsburg and Stephen Breyer, are 83 and 78, respectively. One or more retirements would give Trump an opportunity to shift the court to the right, possibly for generations to come.
For that reason, some Democrats have said recently that they should consider Scalia's replacement on his or her merits and save their more vehement opposition for the next nomination fight, if it comes during Trump's presidency.
Statements from Washington Delegation:
Sen. Patty Murray, D-Wash.
“With so much chaos in the Administration and so many questions surrounding this President’s commitment to the rule of law and the separation of powers—I have serious concerns about moving forward with a Supreme Court nomination at this time and will be joining with those pushing back against jamming this nominee through or rushing a confirmation in any way.
“I am hoping that President Trump pulls back from this chaos and makes it clear that he is truly committed to the rule of law and an independent justice system and judiciary. When and if the time is right, I will evaluate this nominee using the standards I have long used when it comes to Supreme Court nominees—and I would certainly start my process with deep concerns about whether this nominee would be someone who would protect our Constitutional rights and liberties and would respect critical precedents on issues like privacy, workers’ rights, protecting women’s access to health care and upholding Roe v. Wade, and more.”
Sen. Maria Cantwell, D-Wash.
“The American people deserve a Supreme Court justice who will ensure full protection of all their rights, especially the right to privacy. There is too much at stake – from women’s choice and immigration reform to LGBTQ rights and marriage equality to voting rights and campaign finance reform. I have concerns about Judge Gorsuch's record on a number of important issues. We need a justice who will help move our country forward, not backwards, as part of a Court that recognizes settled law.
“I take my responsibility to provide advice and consent very seriously. I will review Judge Gorsuch’s record thoroughly, follow his nomination hearings closely, and I plan to meet with him to ask my own questions. I will be weighing these considerations along with the comments of my constituents as I consider this nomination.”
Rep. Cathy McMorris Rodgers, R-05
“Seeing the late Justice Antonin Scalia’s wife in the room tonight was a reminder of what a great loss his passing was for their family, and for our country. Filling Justice Scalia’s shoes will be no easy feat, but if anyone is up to the challenge, it’s Judge Gorsuch. Not one to be swayed by political whims, Judge Gorsuch understands the importance of limiting federal power and preserving the people’s voice. He is a guardian of the Constitution, and this is a win for those who value our separation of powers and representative government. President Trump promised a ‘truly great’ choice for the Supreme Court, and he followed through. I encourage our Senate colleagues to quickly confirm Justice Gorsuch.”
Rep. Pramila Jayapal, D-07
“President Trump’s relentless assaults on our rights and civil liberties continued tonight with the nomination of Judge Neil Gorsuch. From undermining workers’ rights to attacking women’s reproductive health, Judge Gorsuch has rubber stamped the far-right agenda his entire career. I’m deeply concerned about what the placement of Judge Gorsuch on the Supreme Court would mean for workers, women, people of color, immigrants and anyone who is worried about their constitutional rights being taken away.”
Former Washington State Attorney General Rob McKenna, a Republican, noted that Gorsuch may not be as deferential to federal agencies, regulations or executive orders.
"In this way he might end up being surprising to this administration and the next several presidential administrations if he rules against federal agencies, or against presidential executive orders which he thinks go beyond statutes," McKenna said.
"Judge Gorsuch being a champion of state power and thinking the federal government has become too powerful might be interested in saying, ‘you know what, this executive order isn’t really based adequately in statute, and this executive order might be blocked. Some of President Obama’s executive orders might be overturned on same basis.'"
McKenna also noted the potential significance of a close relationship with Justice Anthony Kennedy.
"The most important think about Judge Gorsuch is actually, I think, in terms of the effect he’ll have on the court is he’s close to Justice Kennedy," McKenna said. "There are some who think Justice Kennedy has been pulled more to the center, even left of center in a few cases by Justice Kagan, who seems to be influential on his thinking. Judge Gorsuch was judicial clerk, a Supreme Court clerk for Justice Kennedy, and some people think he might be able to pull Kennedy back in the more conservative orbit in some cases, in some decisions."
Contributing: David Jackson, Erin Kelly and Donovan Slack
