On January 31, President Trump nominated Judge Neil Gorsuch, a 49-year-old federal appeals court judge on the Tenth Circuit in Denver, as his choice to fill the Supreme Court seat of the late-Antonin Scalia. The position, which opened up after Justice Scalia passed away in February 2016, remained unfilled as a result of Senate Republicans' refusal to act on President Obama's nomination of Judge Merrick Garland, chief judge of the federal appeals court for the District of Columbia.
Judge Gorsuch, like Justice Scalia, is viewed as a conservative and an originalist. Judge Gorsuch has, for the most part, ruled as a traditional conservative. In 2013, Judge Gorsuch wrote a concurrence in the well-known Hobby Lobby case, asserting that under the Religious Freedom Restoration Act the government must give broad deference to religious groups' explanations of what their beliefs entail. Judge Gorsuch has also argued for the constitutionality of religious expression in public spaces, including where only one religious tradition is represented. Judge Gorsuch is a critic of the Chevron deference, the judicial doctrine established by the Supreme Court in 1984 under which courts defer to reasonable agency regulations when a statute is ambiguous. While he has occasionally sided with defendants in criminal law matters, Gorsuch has also taken a limited view of the defendant's right to competent representation and tends not to view death penalty challenges favorably. Judge Gorsuch has not ruled directly on abortion-related issues, but wrote a book in which he argues against doctor-assisted suicide, saying "Human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong."
Senate Republicans are expected to line up in favor of Judge Gorsuch's confirmation while Democrats are divided between the more progressive wing of the party, (in this case led by Senator Jeff Merkley (D-OR)) who will likely filibuster the nomination asserting the position should have been considered by the Senate during the the Obama Administration, and more moderate Democrats, who are willing to hold hearings and grant the Judge a confirmation vote they will certainly lose. If Democrats have enough support to maintain a filibuster on the nomination, Senate Republicans could seek to change Senate rules to invoke the "nuclear option" which would allow the GOP majority to confirm Judge Gorsuch by a simple majority of 51 votes. Majority Leader Mitch McConnell (R-KY) has not said whether he will use the nuclear option, but President Trump has already encouraged him to do so if Democrats mount an effective filibuster. The Senate Judiciary Committee is scheduled to begin confirmation hearings for Judge Gorsuch on March 20.
Takeaway: It remains to be seen whether Senate Democrats will elect to filibuster the nomination, which could lead to Senate Republicans invoking the "nuclear option" to break a filibuster, or whether eight Democrats will be willing to vote to end debate on the nomination, abrogating the need for a rule change. The consequences of this fight will play out over the coming months and, if Senate Republicans invoke the "nuclear option," will be felt for many years to come.
