Vox - Neil Gorsuch, Donald Trump's Supreme Court nomineehttps://cdn.vox-cdn.com/community_logos/52517/voxv.png2017-04-07T11:59:03-04:00http://www.vox.com/rss/stream/142353672017-04-07T11:59:03-04:002017-04-07T11:59:03-04:00Republicans just confirmed Neil Gorsuch after using the “nuclear option” in the Senate
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<p id="vysWWY">The Senate voted to confirm <a href="http://www.vox.com/policy-and-politics/2017/1/31/14450024/neil-gorsuch-supreme-court">Judge Neil Gorsuch</a> to the Supreme Court Friday — though they couldn’t have done it without triggering the “nuclear option” the day before, which allowed his nomination to advance with a simple majority.</p>
<p id="Ge7PTd">That’s because, on Thursday, Democrats voted to filibuster Gorsuch’s nomination, and Republicans couldn’t come up with the necessary 60 votes to overcome that filibuster. If Senate rules were adhered to, Gorsuch’s nomination would have been blocked right there.</p>
<p id="HMIBWz">But Republicans refused to accept no for an answer, and responded simply by changing the rules so that 60 votes were no longer needed to advance a Supreme Court nomination. So, the nomination advanced, and now Gorsuch has been confirmed, with 51 Republicans and 3 Democrats voting for him.</p>
<p id="cIhclQ">The GOP move wasn’t unprecedented — it mirrored a move Senate Democrats made for other presidential nominations in 2013. It was still, however, very unusual, which is why it’s called the “nuclear option.” (It has that name because, well, senators really, really like their rules, and therefore consider breaking them to be essentially as horrific as setting off a nuclear bomb.) </p>
<p id="8UxMrx">So among the fallout, Gorsuch will join the Supreme Court. On the surface, this fight has just been about him, and about whether a conservative should once again occupy the vacant seat last filled by Justice Antonin Scalia, who died last February. This will essentially return the Court to the status quo of the past decade and ensure that the majority will remain out of liberals’ hands.</p>
<p id="qEmU12">The bigger picture, though, is that the showdown over Gorsuch’s nomination marks the culmination of decades of increasing political polarization around the judiciary and in American politics more broadly — polarization that has placed some American institutions under serious strain.</p>
<p id="d64VxO">Presidents used to receive a good deal of deference from the Senate about qualified Supreme Court picks except in cases of extraordinary personal scandal, but that’s no longer the case. </p>
<p id="MQNdrB">The new reality is that most Democrats simply can no longer accept confirming a solid conservative to the Supreme Court. And the failed nomination of Merrick Garland similarly shows most Republicans no longer can accept confirming a solid liberal.</p>
<p id="IR4EjK">And though so much about American politics revolves around Donald Trump these days, this is one situation that really doesn’t. Though Trump’s unpopularity is one factor that hurt Gorsuch’s ability to win over Democrats, the political system has been headed toward this showdown for a very long time.</p>
<h3 id="vgIzHr">1) Who is Neil Gorsuch?</h3>
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<cite>ZACH GIBSON/AFP/Getty</cite>
<figcaption>Neil Gorsuch</figcaption>
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<p id="sczOtp">Neil Gorsuch is a 49-year old judge from the 10th Circuit Court of Appeals, to which he was nominated by George W. Bush in 2006. Before that, he worked at a boutique Washington, DC, litigation firm and for Bush’s Justice Department. His mother was Environmental Protection Agency administrator under President Reagan. Gorsuch has been well-regarded in conservative legal circles for many years.</p>
<p id="nX9Wx3">His judicial record, as <a href="http://www.vox.com/policy-and-politics/2017/3/23/14982598/neil-gorsuch-democrats-nuclear-option-strategy">Dylan Matthews writes</a>, indicates that he is “a down-the-line conservative” who often sides with corporations and Christian groups in contentious cases. While he has taken no public position on the <em>Roe v. Wade</em> decision protecting abortion rights, his writings <a href="http://www.vox.com/policy-and-politics/2017/2/4/14491852/neil-gorsuch-book-euthanasia-abortion">seem to indicate</a> he’d sympathize with the pro-life cause. So he would likely vote with the conservative justices — Clarence Thomas, Sam Alito, and usually John Roberts and Anthony Kennedy — on most politically charged topics.</p>
<p id="YddLpR">Importantly, though Gorsuch was nominated by President Trump, his nomination is rather noteworthy for how <em>un</em>-Trumpy it is. Indeed, Gorsuch could easily have been nominated by President Jeb Bush, President Marco Rubio, President Ted Cruz, President John Kasich, or really any Republican president.</p>
<p id="DQpi6S">That’s because, in a <a href="http://www.vox.com/policy-and-politics/2017/2/1/14463750/neil-gorsuch-supreme-court-republicans">savvy move</a> to win over skeptical conservatives during the campaign, Trump promised to fill the Scalia vacancy only with someone on a preselected list of judges (<a href="https://www.donaldjtrump.com/press-releases/donald-j.-trump-releases-list-of-names-of-potential-united-states-supreme-c">first 11</a>, later <a href="https://www.donaldjtrump.com/press-releases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks">expanded to 21</a>) released by his campaign. These lists were crafted in close consultation with conservative activist groups such as the Federalist Society and the Heritage Foundation, with an eye toward ensuring conservatives would be satisfied by any name on there.</p>
<h3 id="jGfL0y">2) Why is Gorsuch’s nomination controversial? </h3>
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<cite>ZACH GIBSON/AFP/Getty</cite>
<figcaption>Protesters outside the Supreme Court.</figcaption>
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<p id="QSF7lw">The Democratic case against Gorsuch has nothing to do with his qualifications. In many ways, Gorsuch seems to be one of the least objectionable nominees Democrats could expect out of Trump — he has no known relationship with the president (meaning he’s not a Trump crony), and he seems less extreme than many others on Trump’s lists. (Sen. Claire McCaskill (D-MO) <a href="http://www.kansascity.com/news/politics-government/article141651189.html">was recently recorded </a>telling donors that “Gorsuch was one of the better ones” of the available options.)</p>
<p id="4l0ppn">Instead, the main reason Democrats are opposing Gorsuch’s nomination and Republicans are so enthusiastically supporting it is that both parties believe he will be a solidly conservative vote on the Court.</p>
<p id="IeSk0I">Most Democrats simply do not want to confirm a justice who they think would be inclined to vote against abortion rights, LGBTQ rights, voting rights, workers’ rights, and campaign finance restrictions in contentious cases.</p>
<p id="l3Tser">Beyond that, Democrats remain resentful over the fact that Republicans blocked President Obama’s pick to fill this seat, Judge Merrick Garland.</p>
<p id="NfqXu2">Garland was viewed as a moderate liberal, and his qualifications were difficult to dispute. But when Obama nominated him last year, the Republican-controlled Senate refused to even consider the pick. Majority Leader Mitch McConnell came up with the contrived justification that a president in his final year shouldn’t be permitted to fill a Supreme Court seat, something it’s impossible to believe he would argue if the president were a Republican.</p>
<p id="fBrPpX">Democrats viewed the treatment of Garland as a partisan travesty, and as a result even senators of moderate temperament, like Tom Carper of Delaware, were in no mood to help out Republicans here. “I am left with no other choice but to oppose Judge Gorsuch’s nomination until we find agreement on moving Judge Garland’s nomination forward at the same time,” Carper <a href="https://www.carper.senate.gov/public/index.cfm/pressreleases?ID=BE95D8BE-2E46-4B94-B1F1-674C9DE441A6">said in a statement</a>.</p>
<p id="gmNVD5">Finally, there’s the Trump factor. The president is so unpopular among and distrusted by liberals that essentially any lifetime appointment from him would be a tough sell to Democrats, no matter who it is. Indeed, Sen. Elizabeth Warren (D-MA) <a href="http://fortune.com/2017/03/22/elizabeth-warren-gorsuch-confirmation-russia-fbi-investigation/">has said</a> that no Trump nominee should be confirmed while the FBI investigation into his associates and Russia is ongoing. Other Democrats simply want to deny the president an <a href="http://www.politico.com/story/2017/03/gorsuch-republicans-supreme-court-filibuster-236601">“easy win”</a> and view opposing anything he does as good politics.</p>
<h3 id="l7pS29">3) Is it unusual for Democrats to filibuster Gorsuch?</h3>
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<cite>Samuel Corum/Anadolu Agency/Getty</cite>
<figcaption>Mitch McConnell didn’t filibuster Merrick Garland — he just refused to bring up his nomination at all.</figcaption>
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<p id="03dHMj">For nearly half a century, no Supreme Court nomination with the clear support of a majority of senators — as Gorsuch has — has ever been blocked from a floor vote with a filibuster. The only comparable situation is the filibuster of Abe Fortas’s nomination for chief justice in 1968, <a href="http://www.politifact.com/truth-o-meter/statements/2010/apr/14/jeffrey-toobin/toobin-says-supreme-court-nominee-has-never-been-f/">per PolitiFact</a>.</p>
<p id="3MevS1">But the long tradition of senatorial deference to the president’s Supreme Court nominees, except in cases of scandal or lack of qualifications, has been deteriorating for decades.</p>
<p id="RKwAW3">For instance, in 1987, a Democrat-controlled Senate voted down President Reagan’s <a href="http://www.motherjones.com/kevin-drum/2016/02/democrats-fighting-ghost-robert-bork-year">nomination of Robert Bork</a> by 42-58 even though Bork had strong formal credentials for the job and a reputation for brilliant legal scholarship. The Democratic critique of him was based on what they argued was his extreme ideology. (Six Republican senators, <a href="http://articles.latimes.com/1987-10-23/news/mn-10814_1_senate-rejects-bork">it should be noted</a>, were persuaded enough by this critique to vote against Bork.)</p>
<p id="7BcuhA">Still, the norm was for nominees who didn’t have controversial backgrounds or hadn’t faced personal scandal to sail through the Senate smoothly. Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer, and John Roberts all got 78 votes or more in favor of their confirmations. </p>
<p id="mR6bTk">And even in the two <a href="https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm">closest confirmation votes</a> of recent decades — Clarence Thomas’s 52-48 confirmation in 1991, and Samuel Alito’s 58-42 confirmation in 2006 — the filibuster wasn’t used to block them. The norm at the time was that Supreme Court nominees should face an up-or-down final vote, rather than being bottled up with the filibuster.</p>
<p id="3rZerO">However, as polarization in American politics intensified, activists in each party became convinced that their partisan allies in the Senate weren’t doing enough to block what they viewed as bad Supreme Court nominations.</p>
<p id="kFbfbR">So due to conservative pressure, the margins for President Obama’s first two Court nominees were closer than usual, with Sonia Sotomayor being confirmed <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00262">68-31</a> and Elena Kagan being confirmed <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=2&vote=00229">63-37</a>, even though they were both filling seats occupied by liberals. </p>
<p id="aEZTlM">And when Scalia died last year, the prospect of returning to a Court with <a href="http://www.vox.com/2016/8/22/12484000/supreme-court-liberal-clinton">a five-justice liberal majority</a> struck terror into the hearts of many conservatives, who feared sweeping new “liberal activist” rulings. So McConnell refused to even consider the Garland nomination. That satisfied his base but degraded the Senate’s norms on Supreme Court nominations even further.</p>
<h3 id="H2F6UE">4) What is the nuclear option?</h3>
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<cite>Galerie Bilderwelt/Getty</cite>
<figcaption>It’s a lot less dramatic than this.</figcaption>
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<p id="iFS8mK">The Senate adheres to an <a href="http://www.rules.senate.gov/public/index.cfm?p=RulesOfSenateHome">elaborate set of rules</a> and precedents about just what it can and can’t do. Those rules give the minority several tools to delay or block measures it doesn’t like. </p>
<p id="YTvTOG">However, a determined majority of the Senate can also vote to break — or change — the chamber’s rules. This is what’s known as the “nuclear option.”</p>
<p id="VN5jin">Now, when the nuclear option comes up, it’s usually because senators want to limit or eliminate the power of one of those useful tools for the minority in particular — the <a href="http://www.vox.com/cards/congressional-dysfunction/what-is-the-filibuster">filibuster.</a> So let’s recap how the filibuster works.</p>
<ul>
<li id="Bqsvvw">If a bill or nomination comes for a final vote before the Senate, it can pass with a simple majority. </li>
<li id="qTChqa">However, to actually <em>get to</em> that final vote, Senate rules require the chamber to approve what’s known as a “cloture motion” cutting off debate on the topic. </li>
<li id="UxPe2M">This is important because any member of the minority can try to block a cloture motion by using a filibuster.</li>
<li id="za1IU2">And to overcome the filibuster for a bill or Supreme Court nomination (or until 2013, any nomination), support of a majority of senators isn’t enough. Instead, 60 Senate votes — three-fifths of the chamber — are needed.</li>
</ul>
<p id="69hUNu">Because of that higher threshold for success, in recent years the cloture vote has essentially become the real vote determining whether something will pass. It’s no longer just used in extraordinary circumstances — instead, it’s become the main way the minority flexes its muscles in the Senate.</p>
<p id="VCCCPi">The catch is that if the majority believes the minority is abusing its filibuster power — say, by blocking nominees who they think are qualified, or blocking <em>every </em>nominee for a certain post — they have the threat of the nuclear option in reserve. </p>
<p id="PzI5hs">So the Republican-controlled Senate of 2005 threatened to use the nuclear option because they thought Democrats were filibustering too many of George W. Bush’s appellate court nominees. </p>
<p id="FgStYE">And the Democrat-controlled Senate of 2013 actually did use the nuclear option to effectively eliminate the filibuster for all nominations except Supreme Court ones. (This was in response to the apparent GOP desire to filibuster <em>anyone</em> Obama planned to nominate to the DC Circuit Court of Appeals, as well as what Democrats saw as excessive Republican filibusters against nominees generally.)</p>
<h3 id="w8aQzR">5) How does the nuclear option actually work?</h3>
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<cite>Tom Williams/CQ Roll Call/Getty</cite>
<figcaption>Harry Reid and Chuck Schumer, fresh from pressing the nuclear button in November 2013.</figcaption>
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<p id="GP5BOs">When then–Senate Majority Leader Harry Reid used the nuclear option in 2013, the specifics of what he did are complex. (They’re laid out in greater detail in this <a href="https://fas.org/sgp/crs/misc/R43331.pdf">Congressional Research Service report</a>.) But the basics were:</p>
<ul>
<li id="v0fpDn">Reid raised a “point of order” that simply asserted that cloture votes for all nominations except the Supreme Court could pass with a simple majority, even though the Senate rules said otherwise. (This is the rules change he is trying to ram through.)</li>
<li id="klUWio">The senator presiding — the “chair” — ruled against him, because, well, that’s not what the rules said. The rules said you needed three-fifths, not just a majority, to pass a cloture motion.</li>
<li id="XiDR0s">Reid appealed to the full Senate to overturn the chair’s ruling.</li>
<li id="8f2Gvc">A majority of senators (52 of the 55 Democrats) voted with Reid that the chair’s ruling should in fact be overturned.</li>
</ul>
<p id="qAlG5n">And that was it. That vote effectively changed the Senate’s rules by overruling the chair to set a new precedent. From then on, cloture votes for all nominations except the Supreme Court could pass with a simple majority — meaning a filibuster from a minority of senators could no longer stop them. </p>
<p id="wIrxYL">On Friday morning, McConnell followed essentially the same playbook — this time, with every Senate Republican joining him. No Democrats came along.</p>
<p id="smYB4Q">(One important note: The rules change only applies to Supreme Court nominations. It does <em>not</em> eliminate the filibuster for legislation. No one is seriously discussing that at this point... not yet, at least.)</p>
<h3 id="vIOVXu">6) Was there a Democratic debate over provoking a nuclear confrontation?</h3>
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<cite>NICHOLAS KAMM/AFP/Getty</cite>
<figcaption>Democrats fear what would happen if Justice Ruth Bader Ginsburg’s or Justice Stephen Breyer’s seat should open up during Trump’s presidency.</figcaption>
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<p id="XgTip8">After Gorsuch was nominated, there was a <a href="http://www.vox.com/policy-and-politics/2017/3/23/14982598/neil-gorsuch-democrats-nuclear-option-strategy">quiet internal debate</a> in the Democratic Party about whether filibustering him would in fact be a good idea. </p>
<p id="bDyNSy">While the stakes of any Supreme Court fight are high — the nominations last for life, and it’s easy to imagine the 49-year old Gorsuch sitting on the Court for decades — the stakes of some Supreme Court fights are higher than others. </p>
<p id="jnK2wU">Since Gorsuch has been nominated to fill Scalia’s seat, if he does end up voting comparably to Scalia, the Supreme Court would then revert to essentially the ideological balance it had back in February 2016. Liberals obviously wouldn’t be thrilled with this outcome, but it’s not like it would bring the Court into wildly new or unprecedented territory.</p>
<p id="iYQW3x">What Democrats are far more afraid of is the <em>next</em> Supreme Court opening, which could conceivably involve one of the Court’s liberals, like 84-year-old Ruth Bader Ginsburg or 78-year-old Stephen Breyer. It could also involve 80-year-old Anthony Kennedy, who is often the Court’s swing vote and has sided with the liberals on topics like abortion rights and LGBTQ rights.</p>
<p id="dop3pE">If Trump replaced Kennedy, Ginsburg, or Breyer with a hard-line conservative, the Court would move further to the right ideologically than it’s been in decades — probably in more than half a century. Cherished liberal precedents such as <em>Roe v. Wade</em> could then be at risk.</p>
<p id="nXyIg2">So some Democrats argued that it would be smarter strategically to let Gorsuch through in order to ensure sure the filibuster is still around for the next, far more important, fight. McCaskill, a moderate in a state Trump won big, made this argument to donors in audio leaked to <a href="http://www.kansascity.com/news/politics-government/article141651189.html">Bryan Lowry of the Kansas City Star</a>:</p>
<blockquote><p id="mDna5t">So they move it to 51 votes and they confirm either Gorsuch or they confirm the one after Gorsuch. ... They go on the Supreme Court and then, God forbid, Ruth Bader Ginsburg dies, or [Anthony] Kennedy retires or [Stephen] Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it in this state are in jeopardy.</p></blockquote>
<p id="4mX00V">The obvious counterargument here is that if the filibuster is left intact for the next Supreme Court fight, wouldn’t Republicans just use the nuclear option then? Jonathan Chait makes <a href="http://nymag.com/daily/intelligencer/2017/03/if-gorsuch-isnt-filibustered-the-next-democrat-will-be.html">a version of this case</a>, arguing that Republicans have already proven they’re unwilling to accept the filibuster being used to block any GOP nominee.</p>
<p id="BGo1oh">Still, it is at least possible that moderate Republican senators would have a tougher time stomaching the use of the nuclear option to seat a justice who they think would provide a fifth vote to overturn <em>Roe v. Wade</em>,<em> </em>compared with using it to seat a qualified conservative who is merely filling Scalia’s seat.</p>
<h3 id="Nhaewx">7) But Democrats filibustered Gorsuch despite this. Why?</h3>
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<cite>SAUL LOEB/AFP/Getty</cite>
<figcaption>Sen. Claire McCaskill (D-MO) mused about letting Gorsuch through, but decided to filibuster in the end.</figcaption>
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<p id="ckjRCh">In the end, though, just four Democrats — Sens. Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Joe Donnelly (D-IN), and Michael Bennet (D-CO) — refused to filibuster Gorsuch. When added to the 52 Republicans all backing the nominee, that was four away from the 60 votes required to overcome the filibuster. </p>
<p id="tafTYt">Still, since Republicans clearly had the votes to confirm Gorsuch with the nuclear option, it looks like Democrats mounted a losing battle here that could come back to bite them in the future, which seems puzzling to some political observers. Sahil Kapur of Bloomberg has one take on what Democrats are thinking:</p>
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<blockquote class="twitter-tweet">
<p lang="en" dir="ltr">1. Payback for Garland<br><br>2. Mobilize the D base<br><br>3. Deny Trump an easy victory<br><br>4. Confirm more liberal justices next time they're in control <a href="https://t.co/uH40UuoMhK">https://t.co/uH40UuoMhK</a></p>— Sahil Kapur (@sahilkapur) <a href="https://twitter.com/sahilkapur/status/848704170630807558">April 3, 2017</a>
</blockquote>
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<p id="7ZLC5o">But Washington Post reporter Paul Kane doesn’t buy the logic. “There is no plan. It’s just screaming into the wind,” he <a href="https://twitter.com/pkcapitol/status/848696620556398592">tweeted</a>. “They’d rather show base that they filibustered than do nothing.” </p>
<p id="fqLQ71">There is an element of truth to this. All year, Senate Democrats have been hammered by their base even for voting to confirm Trump’s most uncontroversial Cabinet appointments. Fundamentally, it’s just difficult for a party saying it’s trying to #resist Trump to explain why it’s confirming Trump’s Supreme Court nominee.</p>
<p id="4OXa0I">Even McCaskill, one of the most vulnerable Democratic senators up for reelection next year, ended up announcing that she <a href="https://medium.com/senator-claire-mccaskill/gorsuch-good-for-corporations-bad-for-working-people-400de6ec8b8b">would in fact</a> vote to filibuster Gorsuch, despite her sympathies with the “let Gorsuch through” argument. And her decision, announced shortly after her private musings on the issue leaked, is revealing. </p>
<p id="pQjEuU">Even if you buy the logic of the “let Gorsuch through” case, which is hardly airtight, complicated strategies like this are difficult to communicate to activists and base voters who are making the reasonable point that Neil Gorsuch seems like a very conservative judge whom they’d prefer not to have on the Supreme Court. The easier option for a Democrat — even, apparently, for some Democrats in red states — is to just vote no rather than risk being tagged as too supportive of Trump.</p>
<p id="wk6gbr">In the end, the Supreme Court filibuster is a relic of a less partisan and less polarized era. It hasn’t even been used in nearly half a century, so it’s hard to believe it will be missed all that much. Today’s Senate will find, just as the chamber did in 2013, that after the nuclear button is pressed, life goes on.</p>
https://www.vox.com/policy-and-politics/2017/4/3/15108140/neil-gorsuch-nuclear-option-trumpAndrew Prokop2017-04-04T09:50:01-04:002017-04-04T09:50:01-04:00The progressive case against filibustering Neil Gorsuch
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<figcaption>Judge Neil Gorsuch (right) meets Chuck Schumer (D-NY), in February. </figcaption>
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<p id="Dbw152">Senate Minority Leader Chuck Schumer appears to have secured support from <a href="https://www.nytimes.com/2017/04/03/us/politics/senate-democrats-appear-poised-to-filibuster-gorsuch-nomination.html?emc=edit_na_20170403&nl=breaking-news&nlid=63891097&ref=cta&_r=0">40 fellow Democrats</a> for a filibuster of Judge Neil Gorsuch. That marks a short-term victory for Schumer in his bid to block Gorsuch’s nomination. </p>
<p id="x5xf29">In the long term, though, we think it will prove to be a strategic blunder, making it easier for President Donald Trump to fill a future Supreme Court vacancy with a conservative justice who will swing the balance on issues such as abortion, LGBTQ rights, and affirmative action.</p>
<p id="O46ajx">The next moves in the parliamentary chess match are predictable. Senate Majority Leader Mitch McConnell will invoke the “nuclear option” to change Senate rules so that Supreme Court nominees can be confirmed on an up-or-down vote. All McConnell needs now is for 50 of the chamber’s 52 Republicans to vote for the rule change, with Vice President Mike Pence serving as a potential tiebreaker, and the filibuster for Supreme Court nominees will go the way of the dodo. </p>
<p id="KN5lRZ">It would have been wiser for Democrats to hold their fire here and save the filibuster for an instance in which it might have made a difference. With a nominee whose views were less extreme or whose credentials were less sterling, the filibuster would have been a powerful weapon in Senate Democrats’ arsenal. Here, it’s likely to be a dud. </p>
<p id="Vo4dzF">To see why, it’s important to understand when the filibuster is a useful tool for the minority and when it is not. In a nutshell: The filibuster matters most when majority party support for a Supreme Court nominee is neither too hot nor too cold. It can be a source of strategic leverage for the minority when conditions are just right.</p>
<h3 id="USSvsF">The filibuster works best against a nominee with middling support</h3>
<p id="Nf4Kp3">On one end of the spectrum, the filibuster accomplishes no work when majority party support for a nominee is sufficiently strong — that is, when there are 50 or more senators who will support a nominee even if that means going nuclear. In that case, a filibuster will not prevent the nominee from being confirmed. The majority will change the rules to ensure that the nominee ascends to the bench. Most observers <a href="https://www.predictit.org/Market/2198/Who-will-be-the-next-confirmed-Supreme-Court-justice">expect</a> this to happen in Gorsuch’s case.</p>
<p id="eX6X3D">But the filibuster also accomplishes nothing when majority party support for a nominee falls below a certain level. If fewer than 50 senators will support a nominee on an up-or-down vote, then the minority doesn’t need the filibuster to block confirmation. </p>
<p id="lkyhYp">If, for example, President Trump nominated someone like former New Jersey judge and Fox News commentator <a href="http://www.latimes.com/business/hollywood/la-fi-ct-napolitano-fox-news-20170329-story.html">Andrew Napolitano</a> — best known for uncorking the false rumor that President Barack Obama spied on Donald Trump last fall — then Democrats might well be able to defeat the nomination even without the filibuster.</p>
<p id="ip6D24">The filibuster matters most when a) there is a nominee who would win 50 or more senators on an up-or-down vote, but b) fewer than 50 senators would support the nuclear option in order to put the nominee on the Court. </p>
<p id="8WZjgU">When might these conditions be met? It’s not so difficult to imagine a scenario in which they are. </p>
<p id="0snrKh">Quite a few Republican senators would prefer, all else equal, to see the filibuster stay rather than go. This is so for at least three reasons. First, some Republican senators have long enough memories (<a href="http://www.politico.com/story/2017/01/supreme-court-filibuster-senate-234457">Orrin Hatch (UT), John McCain (AZ)</a>) or long enough time horizons (for example, <a href="https://www.wsj.com/articles/ending-the-filibuster-would-hand-progressives-a-huge-victory-1452813245">Ben Sasse</a> (NE)) that they value the filibuster for when Republicans are in the minority. Second, some senators, for example, Lisa Murkowski (R-AK) and Susan Collins (R-ME), realize that the filibuster is all that keeps them relevant. If it takes only 50 votes to do business, then the 51st and 52nd most conservative senators — the Republican “moderates” — are powerless. Third, some senators, for example, Lindsey Graham (R-SC), appear to have an affinity for Senate tradition that will lead them to support the filibuster except in an extreme situation.</p>
<p id="NOlraq">The question is whether these senators’ preference for the filibuster is strong enough to cause them to vote against the nuclear option — either in the case of Gorsuch or that of a future Republican nominee. The answer <a href="http://www.politico.com/story/2017/03/neil-gorsuch-nuclear-option-lindsey-graham-236462">looks likely to be no</a> in the context of Gorsuch: Support for this nominee among Senate Republicans is too hot. But it might well be otherwise in the context of an equally or even more conservative nominee named to fill a future vacancy that puts <em>Roe v. Wade </em>on the line. </p>
<h3 id="8YyrDQ">It’s the <em>next</em> justice that will put cases like <em>Roe</em> in jeopardy</h3>
<p id="W9zlQD">Remember that Susan Collins and Lisa Murkowski are <a href="https://takingnote.blogs.nytimes.com/2015/12/24/the-endangered-pro-choice-republican/">pro-choice</a>, which might make them somewhat less than gung-ho about a Trump nominee who would swing the balance of the Court on abortion. Dean Heller (R-NV) is <a href="http://www.realclearpolitics.com/news/ap/politics/2011/Jun/18/heller_has_changed_abortion_stance_in_congress.html">less clear</a> about his views regarding reproductive rights, but he is running for reelection in 2018 in a state that is <a href="https://fivethirtyeight.com/features/election-update-nevada-is-still-a-swing-state/">turning blue</a>. </p>
<p id="6P9YG2">If Justice Anthony Kennedy or one of the Democratic-appointed justices leaves the bench, would these three senators vote to confirm a staunchly conservative replacement? On an up-or-down vote, maybe. If it means going nuclear, then, well, maybe still. But it is at least somewhat less likely.</p>
<p id="lWbmTf">If they should find themselves in such a scenario, Democrats will wish they had not set in motion the events that led to the filibuster’s demise.</p>
<p id="x9fVSt">And there is another situation in which the filibuster matters. We do not know how the 2018 Senate elections will shake out. Most observers initially assumed that Republicans would pick up at least a few seats, given that 10 incumbent Democrats are running for reelection in states that went for Trump. But with the president’s approval ratings where they are, it’s not impossible to contemplate the Democrats gaining seats in 2018.</p>
<p id="IOkI9E">Imagine a 51–49 Senate with Murkowski as the critical vote, or a 50–50 Senate with Collins as the critical vote (and maybe Joe Manchin (D-WV) sometimes crossing over party lines). Let’s say that Kennedy or a Democratic appointee then leaves the Court, and President Trump names an avowedly anti-abortion appellate judge to fill the vacancy. Is it plausible that Collins, Murkowski, or Manchin a) might support the nominee on an up-or-down vote but b) might be unwilling to go along with McConnell’s use of the nuclear option?</p>
<p id="4UzZ4P">We think so. But more to the point: While it is not too difficult to come up with scenarios in which keeping the filibuster helps the Democrats defeat a very conservative nominee in the future, it is much harder to see how filibustering Gorsuch accomplishes anything for the Democrats.</p>
<p id="3GvOpf">And so the strategic case, from a progressive perspective, against filibustering Gorsuch becomes easy: The probability that <em>Roe v. Wade</em> will survive the Trump years is unambiguously higher if Democrats don’t trigger the nuclear option here than if they do. So, too, for a number of other landmark decisions whose fate might hang in the balance if another vacancy arises. (<a href="https://www.law.cornell.edu/supct/html/02-241.ZS.html"><em>Grutter v. Bollinger</em></a>, which upheld affirmative action? Perhaps even <a href="http://time.com/4706878/neil-gorsuch-confirmation-jim-obergefell/"><em>Obergefell</em><em> v. Hodges</em></a>, which recognized same-sex marriage as a constitutional right?)</p>
<h3 id="YrwMqB">Why Sen. Schumer is considering a filibuster, despite the strong case against</h3>
<p id="DjhrD1">Why, then, are Schumer and the Senate Democrats standing firm on a filibuster here, with full knowledge that their gambit is likely to trigger the nuclear option? There are three theories that might explain what’s going on in the mind of the minority leader and his co-partisans.</p>
<p id="e98a7D">First, Schumer and other Senate Democrats might agree with our Goldilocks theory but not with our application of that theory here. They might think this is one of the “just right” cases where the nominee would win on an up-or-down vote but fewer than 50 Republicans would be willing to go along with the nuclear option. </p>
<p id="OWlZ0v">We think this is unlikely: Moderate Republicans in the Senate have given no indication that they’ll go wobbly here. (If it turns out that McConnell doesn’t have the necessary 50 votes to go nuclear, then we will have to eat crow, and the <a href="https://www.amazon.com/Master-Senate-Years-Lyndon-Johnson/dp/0394720954">“master of the Senate”</a> moniker should be bestowed on Schumer rather than LBJ.)</p>
<p id="7G3y3r">Second, Schumer and Senate Democrats might be hoping that a fight over Judge Gorsuch here, even if it triggers the nuclear option, will galvanize Democratic voters going into the 2018 midterms. Here too, though, we are skeptical. <a href="http://www.cnn.com/election/results/exit-polls">Exit polls from 2016</a> indicated that the future of the Supreme Court was an issue more likely to motivate Republican voters than Democrats. And in order to hold <a href="http://thehill.com/homenews/senate/306210-10-senate-seats-that-could-flip-in-2018">critical seats</a> in states like Indiana, Montana, North Dakota, and West Virginia in 2018, Democrats will need to win over moderate voters. It will be harder to win over those voters if Democrats are perceived as obstructionists.</p>
<p id="vjtAYZ">Third, Schumer and other Senate Democrats might be standing firm here because they are worried about <a href="https://www.facebook.com/events/1325709684156082/">backlash from their own base</a> if they don’t. Certainly, the senators who are contemplating a run for the party’s presidential nomination in 2020 would be well-advised to support the filibuster here. Personal ambition and partisan fury are a combustible combination. </p>
<p id="pOM0Df">But while support for a filibuster might be individually rational for particular senators, we think the likely result is a loss for the progressive movement as a whole. Thoughtful liberals say this is a <a href="http://time.com/4656196/scotus-neil-gorsuch-geoffrey-stone/">stolen seat</a> that belongs to Merrick Garland, not Neil Gorsuch, and we do not disagree. But filibustering here won’t change that. What it might change is whether Trump can use a future vacancy to fundamentally reshape American constitutional law.</p>
<p id="W7dVqj"><em>Daniel Hemel is an assistant professor at the University of Chicago Law School. </em><em>Find him on Twitter </em><a href="https://twitter.com/DanielJHemel?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor"><em>@DanielJHemel</em></a><em>.</em><em> David Herzig is a professor of law and the Michael and Dianne Swygert </em><em>r</em><em>esearch </em><em>f</em><em>ellow at Valparaiso University. </em><em>Find him on Twitter</em><em> </em><a href="https://twitter.com/professortax?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor"><em>@professortax</em></a><em>.</em></p>
<hr class="p-entry-hr" id="5AUmle">
<p id="4mzCQO"><a href="http://vox.com/the-big-idea">The Big Idea</a> is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at <a href="mailto:thebigidea@vox.com">thebigidea@vox.com</a>.</p>
https://www.vox.com/the-big-idea/2017/4/4/15168316/filibuster-gorsuch-senate-nuclear-mistakeDaniel Hemel and David Herzig2017-04-03T14:03:10-04:002017-04-03T14:03:10-04:00Senate Democrats have the votes to filibuster Neil Gorsuch
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<img alt="Senate Judiciary Cmte Votes On Neil Gorsuch Nomination For Supreme Court" src="https://cdn.vox-cdn.com/thumbor/tvtUMtPVL-XdE2Z-mW9TJLxjG3s=/0x0:3000x2250/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/54050617/664137496.0.jpg" />
<figcaption>Photo by Chip Somodevilla/Getty Images</figcaption>
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<p id="csuQHo">Senate Democrats have the 41 votes they need to filibuster Donald Trump’s Supreme Court nominee, Neil Gorsuch.</p>
<p id="4IfePl">On Monday afternoon, Sen. Chris Coons (D-DE) told reporters that he would be joining the Democratic filibuster against Gorsuch’s nomination.</p>
<p id="X471pW">Senate Majority Leader Mitch McConnell (R-KY) has said he would respond to a filibuster by rewriting the Senate’s rules so that Supreme Court justices need 51 rather than 60 votes to be confirmed. That rule change — called the “nuclear option” on Capitol Hill — would allow Gorsuch to be confirmed without Democratic votes.</p>
<p id="v2oZKb">Still, Senate Democrats and left-wing activists have sought to force McConnell to use the nuclear option rather than lay down their arms prematurely. Like other Democrats, Coons stressed that he would filibuster Gorsuch in large part because of McConnell’s refusal to give President Barack Obama’s Supreme Court nominee, Merrick Garland, a Senate hearing after Justice Antonin Scalia died in February of last year. </p>
<p id="gPwbfH">“If seven months of preventing Judge Merrick Garland from getting a hearing and a vote is anything, it’s the most successful partisan filibuster in Senate history,” Coons said. “This is a very close call, and it’s important to not miss that virtually every member of my Congress views this as a stolen seat.”</p>
<p id="vpWtjt">Republicans were quick to criticize Senate Democrats for their obstructionism, with Sen. Bill Cassidy (R-LA) telling CNN that Gorsuch shouldn’t be rejected simply “because Chuck Schumer fears his left-wing base.”</p>
<p id="UiC69I">But for left-wing activists, the willingness of Democrats to stand up to Trump’s nominee is a victory nonetheless. </p>
<p id="qKHr8Q">“We want to see our leaders in Congress standing up as strongly to the Trump administration as we are in the streets and in airports across the country,” Charles Chamberlain, executive director of the advocacy group Democracy for America, told me when Gorsuch’s <a href="http://www.vox.com/policy-and-politics/2017/1/31/14461348/trump-supreme-court-left">nomination was announced</a>. “Anything less than a complete and utter rejection of Trump’s Cabinet appointees and of their Supreme Court appointees is absolutely unacceptable.”</p>
https://www.vox.com/2017/4/3/15164136/senate-democrats-gorsuch-filibusterJeff Stein2017-03-31T16:33:40-04:002017-03-31T16:33:40-04:00Claire McCaskill announces she’ll filibuster Neil Gorsuch
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<img alt="Sen. Claire McCaskill (D-MO) recently unloaded on Sen Orinn Hatch (R-UT) for failing to hold hearings on the Republican health-care bill." src="https://cdn.vox-cdn.com/thumbor/ebAXJEJYqQrPh0XbtcHcC971UkE=/0x0:4920x3690/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/54016665/GettyImages-460200988.0.0.jpg" />
<figcaption>Bill Clark/CQ Roll Call</figcaption>
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<p>A Trump Country Democrat joins with liberals.</p> <p id="8WyGID">Claire McCaskill, a Democrat representing the red state of Missouri, announced today that she intends to join the more liberal members of the Senate in filibustering Neil Gorsuch’s nomination to fill the Supreme Court seat that has been vacant since Justice Antonin Scalia’s death. </p>
<p id="nR60fq">She cites a “rigid ideology that always puts the little guy under the boot of corporations.”</p>
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<p lang="en" dir="ltr">No on Gorsuch: <br> <a href="https://t.co/LfP5n4QyNC">https://t.co/LfP5n4QyNC</a></p>— Claire McCaskill (@clairecmc) <a href="https://twitter.com/clairecmc/status/847904480758820864">March 31, 2017</a>
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<p id="fS9xC6">Her announcement <a href="https://decisiondeskhq.com/vote-tracker/estimating-cloture-count-for-supreme-court-nominee-neil-gorsuch/">brings the number of “no” votes on cloture for Gorsuch up to 39</a>, meaning it would require just two more opponents to block him, unless Republicans move to abolish the filibuster as it pertains to Supreme Court nominees. McCaskill is up for reelection in 2018 and Donald Trump carried her home state by 19 points last fall, so she is one of the Democrats who appeared most likely to defect to his side, on cloture at least. </p>
<p id="jqoWgi">Sens. Joe Manchin (D-WV) and Heidi Heitkamp (D-ND), who are even more imperiled in 2018, have both already committed to voting for Gorsuch. </p>
<p id="4R3J88">Jon Tester of Montana and Joe Donnelly of Indiana also both represent strongly Trumpy states and are as yet undecided. But McCaskill’s decision to filibuster will greatly increase the pressure on blue-state senators such as Mark Warner (D-VA), Michael Bennet (D-CO), Chris Coons (D-DE), and Pat Leahy (D-VT) to join Gorsuch’s opponents. </p>
<p id="OGpakm">If Democrats <em>do</em> filibuster the nomination, it seems very likely that Republicans will respond by changing Senate rules to ban filibustering of Supreme Court nominations. When Democrats last held the Senate, they eventually responded to persistent GOP filibustering of Obama administration nominees by eliminating filibusters for executive branch jobs and lower court appointments. The seat became vacant after the 2014 midterms, by which time Republicans held an outright majority in the Senate, so when Barack Obama appointed Merrick Garland to fill the vacancy, filibuster rules didn’t become relevant — the GOP majority simply declined to hold a vote. </p>
<p id="LBBLoL">Progressive activists have been urging Democratic senators to filibuster Gorsuch and the senators are largely complying, even while Senate Democrats privately fret that it might make more strategic sense to take a dive on this vote and mount strong opposition to a hypothetical future nominee. </p>
https://www.vox.com/2017/3/31/15141198/claire-mccaskill-neil-gorsuchMatthew Yglesias2017-03-24T08:30:02-04:002017-03-24T08:30:02-04:00One Senate Democrat makes the case for filibustering Neil Gorsuch
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<img alt="Senate Democrats Hold News Conf. On Genetically Engineered Food Labeling" src="https://cdn.vox-cdn.com/thumbor/J5BdDkaDor72nUGUft3jDPc3g98=/0x0:3000x2250/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/53863655/545200246.0.jpg" />
<figcaption>Photo by Mark Wilson/Getty Images</figcaption>
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<p id="8EBr1w">Sen. Jeff Merkley (D-OR) has a message for his Democratic colleagues in the Senate: Don’t let Mitch McConnell fool you.</p>
<p id="hkW8zU">On Wednesday afternoon, Politico <a href="http://www.politico.com/story/2017/03/gorsuch-democrats-supreme-court-236384">reported</a> that a handful of Senate Democrats are considering cutting a deal with the Republican majority leader to let Neil Gorsuch, Donald Trump’s nominee to the Supreme Court, through the Senate. </p>
<p id="SW61Bb">In exchange for that concession, Republicans would promise not blow up the rule allowing the Senate minority to filibuster Supreme Court nominations — giving Democrats the ability to filibuster the next, potentially more objectionable Trump Supreme Court pick.</p>
<p id="UHuXKe">Senate Minority Leader Chuck Schumer (D-NY)<a href="http://www.politico.com/story/2017/03/schumer-backs-gorsuch-filibuster-236413"> vowed</a> to filibuster Gorsuch on Wednesday anyway, but it remains an open question if Republicans can find at least eight Senate Democrats who will help them cut off debate on the Supreme Court nominee.</p>
<p id="tRBga6">Merkley thinks the deal is a mistake. In an interview Tuesday, he stressed that Senate Democrats should not trust that McConnell won’t simply repeal the filibuster rule next time around — even if Democrats agree to lay down their arms against Gorsuch now.</p>
<p id="sd9NK8">"We have to realize this is a losing strategy. That simply means Republicans can agree to change the rule on the next individual,” Merkley said in his basement office in the Capitol. “There are enormous consequences to confirming this extreme far-right nominee.”</p>
<p id="7DDcVH">A transcript of my conversation with Merkley, edited for length and clarity, follows. </p>
<h4 id="lVDl9Z">Jeff Stein</h4>
<p id="DiMjsQ">From Obama’s appointment of Merrick Garland, until the Republicans in the Senate refused to give him a hearing, until Gorsuch’s confirmation hearing today, what has this whole Supreme Court fight taught you about American politics that you did not believe before?</p>
<h4 id="00R6BE">Jeff Merkley</h4>
<p id="A16JEI">What is dramatically different is that we are dealing with a seat in which the Senate did not abide by its responsibilities under the Constitution to seat Obama’s nominee. That has not happened in our history. </p>
<p id="skP9mz">It’s important to keep recognizing that this is a seat stolen from President Obama, put into a time capsule, and delivered forward to the next president. Republicans did that in the hope, with the dream, that they’d put forward a very different Court and put a very different judge up for confirmation than did President Obama.</p>
<p id="iUbSJ4">If this succeeds, it’s a precedent that’s terribly destructive. Destructive to the Senate, because it will say, “We can refuse to do our job under the Constitution,” and destructive to the integrity of the Court. Because the Court has been rigged if this nomination of Neil Gorsuch is successful.</p>
<h4 id="19qE4y">Jeff Stein</h4>
<p id="85RZqw">How has this changed your tenor of thinking about working with Republicans? How has that story changed your understanding of how the Senate works?</p>
<h4 id="rRpA71">Jeff Merkley</h4>
<p id="P4c4uI">When I came to the Senate in 2009, I heard that Mitch McConnell wasn’t interested in solving problems and was all about power and obstruction. And I didn’t really believe them.</p>
<p id="Ei4Da9">I felt when you come to the Senate, you have a responsibility to address issues. In short order, I discovered that those stories if anything undersold the fact that Mitch McConnell is completely motivated by political purpose. He didn’t want to solve the problems facing America; he’d do anything possible to undermine the success of President Obama’s ability to be reelected.</p>
<p id="iShQSZ">The Senate looks so different than I saw as an intern for [Oregon] Sen. [Mark] Hatfield 41 years ago. So different than when I worked for Congress in the 1980s.</p>
<h4 id="hOmrjt">Jeff Stein</h4>
<p id="qjInSt">Do you think the rest of your colleagues on the Democratic side recognize that?</p>
<h4 id="KEoQSd">Jeff Merkley</h4>
<p id="RtOozY">They absolutely recognize what Mitch McConnell has done and how it’s undermined this institution. It was only a couple decades ago that everything in the Senate was done by simple majority.</p>
<p id="OOj7qV">The idea you’d require a supermajority to get something done was reversed for very rare occasions. That has completely flipped now. Everything now is a supermajority. </p>
<h4 id="zGEXSc">Jeff Stein</h4>
<p id="cHXg9C">I hear you when you say that the Democratic caucus understands this is what McConnell is all about. But before the hearing, the Huffington Post came out with a <a href="http://www.huffingtonpost.com/entry/senate-democrats-trump_us_588817f3e4b0b481c76be1e5">story</a> saying Democrats did not have the appetite for an all-out war on this. Some Democratic senators are saying, “We shouldn’t try to treat Grouch the way they treated Garland.” And there’s a recognition Democrats have to play nice. </p>
<p id="l383t8">Is that a mistake? Or is that an incorrect assessment of your colleagues’ attitude? </p>
<h4 id="pNYIDo">Jeff Merkley</h4>
<p id="tpyRh0">When my colleagues say, “We’re not going to treat Gorsuch the way Republicans treated Garland,” what they’re saying is, “He’ll get a committee hearing; he’ll get vetted in committee.” Knowing Republicans have control, they know he’ll get to the floor. But that floor vote may well be a vote on closing debate. And my colleagues are not saying they are committed to closing debate. </p>
<p id="ma9usC">Had the Republicans proceeded to hold hearings on Merrick Garland and put him on the floor and then voted on him — whether to table it or to defeat it, or so forth — that would have at least been in the realm of the Senate doing its job. But do not assume this means that people are going to be prepared to close debate, which is the more procedural way to describe what the filibuster is.</p>
<h4 id="yXopAd">Jeff Stein</h4>
<p id="W4qJ45">Let me phrase this more directly: Are you worried Democrats are going to vote to confirm Gorsuch?</p>
<h4 id="NVEc3A">Jeff Merkley</h4>
<p id="J5ybPe">I believe Democrats will filibuster Gorsuch and will not vote to close debate. There is a concern. The concern is that some may say, as has been reported, “Why not strike a deal with Republicans? They agree to keep the rule in place, and we agree not to filibuster.”</p>
<p id="bmEGY5">We have to realize this is a losing strategy. That simply means Republicans can agree to change the rule on the next individual. </p>
<p id="XFHspp">If folks say, “This one doesn’t really change the Court” — absolutely it does. We have a 4-4 Court; you can look at the 5-4 Court, it’s all anti-labor, anti-consumer, anti-environment decisions. And so there are enormous consequences to confirming this extreme far-right nominee.</p>
<h4 id="kpUQ9m">Jeff Stein</h4>
<p id="lv57nx">When I talk to more moderate Democrats, they see their institutional prerogatives as being in tension with the policy outcomes you’re talking about. They see it as there being two axes to uphold — one that’s being a good senator, following the Senate rules and traditions; and two, fighting for the progressive policies they believe in.</p>
<p id="mv3lvH">Do you feel that for you or the rest of your colleagues, this second axis is taking over the first in importance?</p>
<h4 id="rTmdBz">Jeff Merkley</h4>
<p id="dNBWCN">I think the two are compatible. </p>
<p id="58xhf4">Senators who said, “Yes, we must have a committee hearing; we need to have a debate on the floor” — that’s the procedural side.</p>
<p id="OzopYC">But that’s not incompatible with voting against closing debate, because the policy consequences of this far-right judge are enormous. I’ve listened to my Senate colleagues who two or three weeks ago were in neutral territory, who now reviewed case after case after case and met with, listened to, heard from Judge Gorsuch, and they’re saying, “I started out in the middle ground, but the more I find out he’s the furthest-right judge ever put before the Senate, that is not compatible with our Constitution” — well, these are my words at this point.</p>
<p id="bVGVCL">This is really a dynamic between the vision of a government that works of, by, and for the people and one that works of, by, and for the corporations. That’s what’s at stake here.</p>
https://www.vox.com/policy-and-politics/2017/3/24/15031522/senate-democrat-merkleyJeff Stein2017-03-23T14:50:01-04:002017-03-23T14:50:01-04:00Democrats will try to filibuster Neil Gorsuch. And the filibuster might not survive intact.
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<img alt="Senate Holds Confirmation Hearing For Supreme Court Nominee Neil Gorsuch" src="https://cdn.vox-cdn.com/thumbor/uaKCNi8oyNVGWQAhBSJ4FUXJqAk=/5x0:2996x2243/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/53859441/656544802.0.jpg" />
<figcaption>Justin Sullivan/Getty Images</figcaption>
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<p id="QJ3ujd">It’s official: Senate Democrats are going to <a href="https://www.washingtonpost.com/powerpost/gorsuch-confirmation-hearing-to-focus-today-on-testimony-from-friends-foes/2017/03/23/14d21116-0fc7-11e7-9d5a-a83e627dc120_story.html?hpid=hp_rhp-top-table-main_gorsuch-1040a%3Ahomepage%2Fstory&utm_term=.53dd5b907826">try to filibuster Neil Gorsuch’s nomination</a> to the Supreme Court.</p>
<p id="TIPl0m">Senate Minority Leader Chuck Schumer stated in a Senate floor speech that Gorsuch “almost instinctively favors the powerful over the weak,” and is “not a neutral legal mind but someone with a deep-seated conservative ideology.”</p>
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}(document, 'script', 'facebook-jssdk'));</script><div class="fb-video" data-href="https://www.facebook.com/senschumer/videos/10155211298384407/"><blockquote cite="https://www.facebook.com/senschumer/videos/10155211298384407/" class="fb-xfbml-parse-ignore">
<a href="https://www.facebook.com/senschumer/videos/10155211298384407/">Senator Schumer Explains Why He will Vote No on Judge Gorsuch'...</a><p>The American people deserve a Supreme Court Justice who sees average litigants as more than mere incidental consequences of precedent when that precedent produces an absurd result; whose view of the law is not so cold and so arid so as to wring out every last drop of humanity and common sense. It requires only the bare minimum of judicial decency to rule the right way in the cases I mentioned in my speech today, and yet Judge Gorsuch did not.
After careful deliberation, I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court. His nomination will face a cloture vote, and as I’ve said, he will have to earn sixty votes for confirmation. My vote will be “No.” - Watch my full speech this morning to hear why:</p>Posted by <a href="https://www.facebook.com/senschumer/">Senator Chuck Schumer</a> on Thursday, March 23, 2017</blockquote></div>
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<p lang="en" dir="ltr">Judge Gorsuch's nomination will face a cloture vote & as I’ve said, he will have to earn sixty votes for confirmation. My vote will be “No.”</p>— Chuck Schumer (@SenSchumer) <a href="https://twitter.com/SenSchumer/status/844915278463074305">March 23, 2017</a>
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<p id="dRc6Ji">Other Democrats have signaled that they'll join their leader. Bob Casey, a senator from Pennsylvania facing reelection next year after his state went for Trump, stated that he has <a href="http://www.dispatch.com/news/20170323/top-senate-dem-opposes-supreme-court-pick-vows-filibuster">"serious concerns about Judge Gorsuch's rigid and restrictive judicial philosophy."</a></p>
<p id="m3wXpU">There’s no guarantee that this filibuster will succeed. When John Kerry, who had just lost the presidential election, and Senate Minority Leader Harry Reid backed a filibuster of Samuel Alito in 2005, <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00001">only 23 members</a> of their caucus joined them, while 19 Democrats, including current Sens. Maria Cantwell, Tom Carper, and Bill Nelson, voted to break the filibuster. Those three senators, plus four senators from deep red states (Joe Manchin, Heidi Heitkamp, Joe Donnelly, and Claire McCaskill), plus one more (maybe Michael Bennet from Gorsuch’s home state of Colorado) would be enough to break a filibuster.</p>
<p id="rXjUE5">And there’s still a chance that Schumer changes his mind. On Wednesday night, <a href="http://www.politico.com/story/2017/03/gorsuch-democrats-supreme-court-236384">Politico's Burgess Everett</a> reported that Democrats were weighing a deal that would see Gorsuch confirmed in exchange for "a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term."</p>
<p id="Zt46Rm">But if Schumer’s effort goes forward, and succeeds, it appears likely that the result would be the elimination of the filibuster on Supreme Court nominees — the “nuclear option.” Republican Sens. <a href="http://www.politico.com/story/2015/02/lamar-alexander-mike-lee-supreme-court-nominations-filibusters-114916">Mike Lee and Lamar Alexander</a> have been calling for that change since Republicans recaptured the Senate in early 2015, and Majority Leader Mitch McConnell himself has signaled that he’s willing to go nuclear, <a href="https://www.apnews.com/dcb04f7323af4e50aa72d57c38b59494">telling reporters</a>, “Gorsuch will be confirmed; I just can't tell you exactly how that will happen, yet.”</p>
<p id="Z7S1FV">Schumer’s decision should be understood, then, as a strategic judgment that it’s worth risking the nuclear option for a small chance of defeating Gorsuch. It’s obvious that Democrats don’t want to confirm Gorsuch, who wrote a book arguing that <a href="http://www.vox.com/policy-and-politics/2017/2/4/14491852/neil-gorsuch-book-euthanasia-abortion">judges should embrace an absolute right-to-life principle</a> in assisted suicide cases, has <a href="http://www.vox.com/policy-and-politics/2017/1/31/14450024/neil-gorsuch-supreme-court">backed religious challenges to the Affordable Care Act</a>, and <a href="http://www.denverpost.com/2017/02/27/neil-gorsuch-workers-rights-cases/">sided with corporations and against workers in a variety of cases</a>. But there are some strategic arguments for why they might not have wanted to filibuster this time around anyway. Schumer’s decision suggests he doesn’t find those arguments compelling, and thinks the straightforward strategy of “resist a nominee you think is bad” is more sound.</p>
<h3 id="kP1XLp">The strategic logic for accepting Gorsuch — and why Schumer rejected it</h3>
<p id="arbYV1">If the nuclear option is invoked, that doesn’t just confirm Gorsuch. It means that if a liberal or swing justice dies or retires while Republicans have a Senate majority, giving Trump the power to truly reshape the Court, there will be nothing they can do to stop him. The 5-4 majority that has upheld reproductive rights, struck down same-sex marriage bans, and generally prevented total conservative domination of the nation’s highest court would be replaced by a permanent conservative majority.</p>
<p id="nI9cfY">Without the filibuster, Republicans could confirm a replacement with a simple majority. They could put in someone like <a href="http://www.vox.com/policy-and-politics/2017/1/24/14372842/donald-trump-supreme-court-gorsuch-hardiman-pryor">11th Circuit Judge Bill Pryor</a>, who has called <em>Roe v. Wade</em> “the worst abomination in the history of constitutional law,” and Democrats would not be able to block him.</p>
<p id="HD5cVE">So there’s an argument to be made that Democrats should save their ammunition for the (hypothetical) next fight: filibustering anyone whom Trump picks to replace Anthony Kennedy, Ruth Bader Ginsburg, or Stephen Breyer, the three oldest justices. Because of the higher ideological stakes for the Court, this strategy bets that less conservative Senate Republicans such as Lisa Murkowski, Rob Portman, Cory Gardner, or Susan Collins might be less willing to go nuclear than they might be on Gorsuch’s behalf. The nominee could then be successfully blocked until Trump pulls the nominee and picks a more moderate choice.</p>
<p id="yYPfXo">Schumer’s decision suggests he disagrees with this logic — and there are sound reasons for him to do so. For one thing, the argument only makes sense if you think less conservative Republicans would vote for a conservative replacement to Ginsburg or Kennedy, but not go nuclear on their behalf. If they’d <em>both</em> refuse to go nuclear and vote against the nominee, then it doesn’t matter if the threshold is 51 or 60 — the nominee would fall short either way. So surrendering ahead of time only makes sense if you think there are a decent number of Republicans who will stake out the peculiar compromise position of being pro-nominee but anti–nuclear option.</p>
<p id="IAKfG9">Schumer might also think Republicans lack the votes to go nuclear over Gorsuch. If the nuclear option isn’t possible in this case, then Democrats really can prevent Gorsuch from taking his seat indefinitely.</p>
https://www.vox.com/policy-and-politics/2017/3/23/15039230/neil-gorsuch-filibuster-chuck-schumer-strategyDylan Matthews2017-03-23T08:30:02-04:002017-03-23T08:30:02-04:00Why would Democrats ever let Neil Gorsuch be confirmed?
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<img alt="Senate Holds Confirmation Hearing For Supreme Court Nominee Neil Gorsuch" src="https://cdn.vox-cdn.com/thumbor/jr8Bgj0QRjwgajb4OVDmD9kCpBE=/0x0:3000x2250/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/53842011/655594792.0.jpg" />
<figcaption>Alex Wong/Getty Images</figcaption>
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<p id="xlKW6b">Senate Democrats have a lot of reasons to reject Neil Gorsuch, President Trump’s first Supreme Court nominee.</p>
<p id="F1Ds0r">He is a down-the-line conservative. He was appointed to a federal appeals court by George W. Bush, wrote a book arguing that <a href="http://www.vox.com/policy-and-politics/2017/2/4/14491852/neil-gorsuch-book-euthanasia-abortion">judges should embrace an absolute right-to-life principle</a> in assisted suicide cases, and has <a href="http://www.vox.com/policy-and-politics/2017/1/31/14450024/neil-gorsuch-supreme-court">backed religious challenges to the Affordable Care Act</a> (including in the <em>Hobby Lobby</em> case). He <a href="http://www.denverpost.com/2017/02/27/neil-gorsuch-workers-rights-cases/">sided with corporations and against workers in a variety of cases</a>, including one in which a Kansas State professor was fired for requesting more leave after a cancer diagnosis, and one involving a truck driver who was fired for abandoning his malfunctioning<strong> </strong>truck after waiting in a freezing, unheated cabin for three hours.</p>
<p id="P3RUX2">There’s more: Gorsuch was nominated to the Supreme Court by President Donald Trump, who has <a href="http://www.vox.com/policy-and-politics/2017/2/13/14541974/constitutional-crisis-experts-unanimous">attacked the federal judiciary repeatedly</a>, and whose actions — restricting immigration from some Muslim countries, cracking down on undocumented immigrants, and rolling back environmental regulation — are certain to draw legal challenge after legal challenge. Some of those challenges will almost certainly come before the Supreme Court.</p>
<p id="3PTost">If that weren’t enough, Gorsuch is nominated for the same seat that Merrick Garland was, and Senate Republicans’ refusal to so much as hold hearings for Garland still, understandably, enrages Senate Democrats, who feel the seat was stolen.</p>
<p id="8JBx6V">Democrats are essentially helpless to stop many of Trump’s decisions. But not this one: Senate Democrats have the ability to block Gorsuch from joining the Court by filibustering. Unless Republicans can peel off <a href="http://www.politico.com/story/2017/02/trump-supreme-court-democrats-senate-234521">eight Democrats</a> to break that filibuster, Gorsuch won’t be able to join the Court.</p>
<p id="Itf5uI">And yet the conventional wisdom in Washington is that Gorsuch — whose confirmation hearings began Monday and are schedule to end Thursday — is a sure thing, and will coast to a confirmation vote without much controversy. <a href="http://www.politico.com/story/2017/03/gorsuch-democrats-supreme-court-236384">Politico's Burgess Everett</a> reports that Democrats are weighing a deal that would see Gorsuch confirmed in exchange for "a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term."</p>
<p id="HsEjUH">How such a promise could be made binding, I don't know. But even without that promise there’s a strategic story Democrats can tell themselves about why letting Gorsuch slide would be a good idea. Whether or not that story makes any sense is a good question.</p>
<h3 id="f6nnqu">The big unknown: when do Democrats want Republicans to go nuclear?</h3>
<p id="cYoZhJ">The biggest reason Democrats might want to go easy on Gorsuch is that Senate Majority Leader Mitch McConnell really does have a way to force the nomination through. He can change the filibuster rule so that it only takes 51 votes, not 60, to invoke cloture on a Supreme Court nominee, just as <a href="https://www.washingtonpost.com/news/wonk/wp/2013/11/21/everything-you-need-to-know-about-thursdays-filibuster-change/?utm_term=.65e79ac41888">Senate Democrats did for non-Supreme Court judicial nominees and all executive nominees</a> in November 2013.</p>
<p id="pE4Bqt">The precedent has been set for that change, and Republican senators like <a href="http://www.politico.com/story/2015/02/lamar-alexander-mike-lee-supreme-court-nominations-filibusters-114916">Mike Lee and Lamar Alexander</a> have been calling for it since Republicans recaptured the Senate in early 2015. McConnell himself has signaled that if Democrats filibuster Gorsuch, he’s willing to go nuclear, <a href="https://www.apnews.com/dcb04f7323af4e50aa72d57c38b59494">telling reporters</a>, “Gorsuch will be confirmed; I just can't tell you exactly how that will happen, yet.”</p>
<p id="arbYV1">This presents a dilemma for Democrats. If the nuclear option is invoked, that doesn’t just confirm Gorsuch. It means that if a liberal or swing justice dies or retires while Republicans have a Senate majority, giving Trump the power to truly reshape the Court, there will be nothing they can do to stop him. The 5-4 majority that has upheld reproductive rights, struck down same-sex marriage bans, and generally prevented total conservative domination of the nation’s highest court would be replaced by a permanent conservative majority. </p>
<p id="nI9cfY">Without the filibuster, Republicans could confirm a replacement with a simple majority. They could put in someone like <a href="http://www.vox.com/policy-and-politics/2017/1/24/14372842/donald-trump-supreme-court-gorsuch-hardiman-pryor">11th Circuit Judge Bill Pryor</a>, who has called <em>Roe v. Wade</em> “the worst abomination in the history of constitutional law,” and Democrats would not be able to block him. </p>
<p id="HD5cVE">So when it comes to Gorsuch, two scenarios could play out for Democrats:</p>
<p id="0RqHRF"><strong>Full obstruction: </strong>Democrats filibuster Gorsuch. McConnell invokes the nuclear option. Unless enough Republicans oppose the rule change, Gorsuch is confirmed. Republicans keep or gain Senate seats in 2018. Then a liberal justice or swing vote retires or dies. Trump nominates someone conservative (a crony, a hard-right ideologue, or a mainstream pick with little paper trail) to replace them. Democrats have no way to stop Trump from replacing a liberal or moderate vote with a conservative one: With a 51-vote threshold for nominees, most nominees have a good shot at getting confirmed. </p>
<p id="b8PlEC"><strong>Strategic surrender: </strong>Democrats decline to filibuster Gorsuch, allowing at least eight members of the caucus to vote for cloture. Then they save their ammunition for the (hypothetical) next fight: filibustering anyone whom Trump picks to replace Anthony Kennedy, Ruth Bader Ginsburg, or Stephen Breyer, the three oldest justices. Because of the higher ideological stakes for the Court, this strategy bets that less conservative Senate Republicans such as Lisa Murkowski, Rob Portman, Cory Gardner, or Susan Collins might be less willing to go nuclear — forcing Trump to moderate his choices.</p>
<h3 id="3QDLfC">How Democrats will figure out which of these strategies would work best</h3>
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<img alt="U.S. Supreme Court Women Justices Are Honored On Capitol Hill For Women's History Month" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/yb9lkcKsRjRFHbw-VvOZLu9yohw=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/8206309/466730748.jpg">
<cite>Allison Shelley/Getty Images</cite>
<figcaption>Which strategy is least likely to get Ruth Bader Ginsburg replaced with a conservative?</figcaption>
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<p id="9srI4F">The reasoning behind strategic surrender is at least somewhat compelling. But whether or not it makes sense depends on a number of factors:</p>
<p id="yYPfXo"><strong>Are there Republicans who’d vote for a conservative replacement to Ruth Bader Ginsburg, but not go nuclear for them? </strong>This is the big variable. Suppose Ginsburg dies or retires in the next four years and Trump nominates Bill Pryor or another hard-line conservative to replace her. If three or more less conservative Republicans come out against the nomination entirely, then it doesn’t really matter whether the threshold to confirm them is 60 votes or 51. If the filibuster were destroyed by the Gorsuch fight, then the nomination would just fail normally in an up-or-down vote.</p>
<p id="F1U56q">Strategic surrender then only makes sense if you think Gardner, Portman, Murkowski, or Collins would vote <em>for</em> a nominee like that in an up-or-down vote,<strong> </strong>but wouldn’t go so far as to change the rules of the Senate to put them on the Court. </p>
<p id="kdDU87"><strong>How long could you keep up blocking a conservative replacement? </strong>Let’s say Trump nominates a Gorsuch clone — a hard conservative who says the right things and charms senators and doesn’t seem like an ideologue — for Ginsburg’s seat. And a sufficient number of Republicans oppose going nuclear that Democrats successfully block the pick. Now let’s suppose the nomination just sits there for months and months.</p>
<p id="VUOTBo">At some point, do the anti-nuclear Republicans break and come around to the nuclear option? Or does Trump fold first, pull the nominee, and pick someone more moderate? If you think the latter is likely, then surrender on Gorsuch makes sense. If you think the former is more likely, then it doesn’t.</p>
<p id="7mO09G"><strong>How likely do you think Republicans successfully going nuclear over Gorsuch is?</strong> If you doubt that less far-right GOPers like Collins or Murkowski are willing to blow up Senate rules for someone who almost certainly would vote to overturn <em>Roe v. Wade</em>, then full obstruction starts to make more sense. If the nuclear option isn’t possible in this case, then Democrats really can prevent Gorsuch from taking his seat indefinitely.</p>
<p id="wu6eTu"><strong>Is it important to punish Republicans for obstructing Merrick Garland?</strong> I hate to say this, but I’m afraid <a href="http://www.slate.com/articles/news_and_politics/politics/2016/12/what_the_hell_is_wrong_with_america_s_establishment_liberals.html">it’s time for some game theory</a>. In the 1980s, the game theorists Anatol Rapoport and <a href="https://smile.amazon.com/Evolution-Cooperation-Revised-Robert-Axelrod/dp/0465005640?sa-no-redirect=1">Robert Axelrod</a> found that if you play the famous prisoner's dilemma game (where cooperation helps both parties but they face strong incentives to defect) again and again, one of the best strategies you can use is "tit for tat": do whatever your opponent did the last time.</p>
<p id="BinbVt">As political scientist <a href="https://psmag.com/the-case-for-democratic-recklessness-ef029b7fce61#.eqthcikhj">Seth Masket points out</a>, in the case of the Supreme Court, this implies that Democrats should respond to the obstruction of Garland by obstructing Gorsuch. In the long run, tit for tat produces more cooperation than the alternatives, and showing Republicans that Democrats won't tolerate that kind of obstruction could have some long-term benefits for the party.</p>
<p id="RiW7lV"><strong>Will there even </strong><em><strong>be</strong></em><strong> a next fight?</strong> Maybe Kennedy, Ginsburg, and Breyer are all still on the court in four to eight years when Trump leaves office — or maybe Democrats retake the US Senate in 2018 (despite a very tough map) or 2020, before any of the justices retires or dies. In those cases, all of this is moot. What happens to Gorsuch and the filibuster rule won’t affect the “next fight” at all, because Democrats will be able to either nominate a liberal justice or use a Senate majority to block conservative ones.</p>
<h3 id="C0X3cl">The fact of the matter is that Trump is going to get a lot of judges Democrats don’t like on courts</h3>
<p id="n6E7Gw">The answers to those questions depend a lot on probabilities that are inherently impossible to know with any certainty. Will Murkowski kill the filibuster for Scalia’s replacement, but not Ginsburg’s? Will she keep not killing the filibuster for Ginsburg’s replacement month after month? Can the nuclear option succeed for Gorsuch? Will blocking Gorsuch to punish Republican obstruction of Garland change Republicans’ behavior and make them more cooperative going forward?</p>
<p id="LYQ5zj">But the basic fact of the matter is that replacing Antonin Scalia is Donald Trump’s job, as infuriating as that is for Democrats after the Garland situation. And if Ruth Bader Ginsburg passes away or Anthony Kennedy retires or Elena Kagan decides to quit and sail around the world, Trump will be able to name a replacement too, with much greater consequences for the Court.</p>
<p id="nLCyfJ">Democrats are trying to figure out how best to play a set of very bad cards. They can do everything they can to keep Collins, Murkowski, and Gardner equivocating. But ultimately, it’s the least conservative Republicans in the Senate (people who are by no means <em>moderate</em>) who will decide if Gorsuch and a hypothetical conservative replacement to Ginsburg or Kennedy go through. </p>
<p id="pWcliy">Democrats can try to affect their thinking, but their tools are limited.</p>
<p id="G7zN75">Unless Democrats overcome a very tough Senate map in 2018 to regain a majority, the fact of the matter is that Republicans, on their own, can use the nuclear option to confirm anyone they want for the Supreme Court for the next four years. And that will almost certainly mean the Court moves to the right.</p>
https://www.vox.com/policy-and-politics/2017/3/23/14982598/neil-gorsuch-democrats-nuclear-option-strategyDylan Matthews2017-03-21T14:50:02-04:002017-03-21T14:50:02-04:00Neil Gorsuch is denying former students' claims that he made sexist remarks in class
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<img alt="Senate Holds Confirmation Hearing For Supreme Court Nominee Neil Gorsuch" src="https://cdn.vox-cdn.com/thumbor/7WD2mf86aFSeBuMq3hXRp7brpGg=/29x0:2972x2207/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/53813537/656125616.0.jpg" />
<figcaption>Photo by Justin Sullivan/Getty Images</figcaption>
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<p>He also refused to say whether employers should be allowed to ask women if they plan to get pregnant.</p> <p id="fSQrxr">During his confirmation hearing Tuesday, Supreme Court nominee Neil Gorsuch denied allegations by two of his former law students that he made sexist remarks about women in the workplace. </p>
<p id="N7Q31B">A former student said Gorsuch said in a legal ethics class that “many” women lawyers lie about whether they plan to have children to abuse maternity benefits — and that their companies should ask about such plans to protect themselves. The remarks have become an attack for Democrats opposed to the Tenth Circuit Court judge’s nomination, particularly because Gorsuch, like many would-be justices, doesn’t have a long track record of public opinions on controversial issues.</p>
<p id="vrVTez">But at the hearing Tuesday, Gorsuch denied those remarks, and said that instead he was asking for a show of hands to make the opposite point: that many women are often asked “inappropriate” questions about their family planning in a professional context.</p>
<h3 id="evHD9P">A former student says Gorsuch made a sexist remark about women and maternity benefits</h3>
<p id="wdADw5">The former student, Jennifer R. Sisk, signed a <a href="https://s3.amazonaws.com/membercentralcdn/sitedocuments/nela/nela/0116/773116.pdf?AWSAccessKeyId=0D2JQDSRJ497X9B2QRR2&Expires=1490116957&Signature=HCoxwCJCwsr8Frlf%2FAZ3IyHXlOk%3D&response-content-disposition=inline%3B%20filename%3D%22Gorsuch_Sisk_03_17_17_Ltr_To_Grassley_Feinstein%2Epdf%22%3B%20filename%2A%3DUTF-8%27%27Gorsuch%255FSisk%255F03%255F17%255F17%255FLtr%255FTo%255FGrassley%255FFeinstein%252Epdf">letter</a> to the Senate Judiciary Committee describing a discussion in an April 2016 legal ethics class at the University of Colorado. Gorsuch, according to Sisk, said during a class discussion that “many” women lawyers manipulate their companies’ maternity benefits by lying about their plans to get pregnant, and then leaving soon after the baby is born:</p>
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<p id="wbOMi7">[H]e asked the class to raise their hands if they knew of a female who had used a company to get maternity benefits and then left right after having a baby. Judge Gorsuch specifically targeted females and maternity leave. This question was not about parents or men shifting priorities after having children. It was solely focused on women using their companies.</p>
<p id="0vMvki">I do not remember if any students raised their hands, but it was no more than a small handful of students. At that point Judge Gorsuch became more animated saying “C’mon guys.” He then announced that all our hands should be raised because “many” women use their companies for maternity benefits and then leave the company after the baby is born. </p>
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<p id="lYyw4C">When one student objected that employers can’t ask about family plans during a job interview, Sisk said Gorsuch denied that this was true: “Instead Judge Gorsuch told the class that not only could a future employer ask female interviewees about their pregnancy and family plans, companies must ask females about their family and pregnancy plans to protect the company.” </p>
<p id="Y1CkTy">The university later confirmed to the committee that Sisk had raised these objections with them shortly after the class discussion.</p>
<h3 id="llLjtS">Gorsuch argued the question was “inappropriate” — but dodged a question about whether it was illegal</h3>
<p id="ytfDle">When Sen. Dick Durbin (D-IL) confronted Gorsuch, however, Gorsuch flatly denied Sisk’s claims. He said he had never asked his students to raise their hands if they knew any women who had used their company for maternity benefits. </p>
<p id="bnqtOP">Instead, Gorsuch said, he asked for a show of hands of how many students had been asked “an inappropriate question about your family planning” in an employment context. </p>
<p id="FUTZPj">“I am shocked every year how many young women raise their hand,” Gorsuch said. </p>
<p id="K3Xa1B">Gorsuch also dodged questions from Durbin about whether he thinks it’s <em>legally </em>inappropriate to ask questions like these, and whether a company should be able to take a woman’s family choices into consideration during the hiring process. </p>
<p id="7UsHYv">Nor did Gorsuch address Sisk’s claims that he had told his law class companies <em>must </em>ask women these questions out of protection. </p>
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<p lang="en" dir="ltr">Professor Gorsuch seemingly opted not to instruct his students on how to address or correct illegal questioning in job interviews.</p>— Rachel Perrone (@RachelPerrone) <a href="https://twitter.com/RachelPerrone/status/844234174206763010">March 21, 2017</a>
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<p id="q3lpL7">Durbin pointed out that the Equal Employment Opportunity Commission (EEOC) generally considers asking a woman about family planning during a job interview to be evidence of pregnancy discrimination. </p>
<p id="4jviUH">Did Gorsuch find the EEOC’s guidance to be “persuasive,” Durbin asked? </p>
<p id="WTDN7d">“Senator, there’s a lot of words there,” Gorsuch replied, adding that he’d have to study the question further in the context of a judicial case to offer a legal opinion. </p>
https://www.vox.com/identities/2017/3/21/15009154/neil-gorsuch-hearings-maternity-leave-pregnancy-discriminationEmily Crockett