Reported By Alexander Bolton – 04/07/17 11:58 AM EDT
The Senate on Friday confirmed Neil Gorsuch to the Supreme Court, giving President Trump the biggest victory of his first 100 days in office. The 54-45 vote caps a bitter political battle that began with the death of Justice Antonin Scalia more than a year ago and resulted in the Senate triggering the “nuclear option,” breaking Democrats’ blockade and ending filibusters for Supreme Court nominees.
But two Democrats facing reelection in 2018 in states Trump won by double digits — Sens. Claire McCaskill (Mo.) and Jon Tester (Mont.) — voted no, a reflection of Trump’s slumping approval rating among independents and the boiling rage of the Democratic base over his 2016 electoral victory.
Gorsuch will be sworn in as the Supreme Court’s 101st associate justice on Monday.
Chief Justice John Roberts is set to administer the Constitutional Oath in a private ceremony at 9 a.m., and Justice Anthony Kennedy will administer the oath at a public ceremony at the White House later in the morning.
Senate Democratic Leader Charles Schumer (N.Y.) said the fight will leave a scorch mark on the Senate because Republicans employed the nuclear option.
“It will make this body a more partisan place. It will make the cooling saucer of the Senate considerably hotter, and I believe it will make the Supreme Court more of a partisan place,” Schumer said on the Senate floor Friday.
Senate Majority Leader Mitch McConnell (R-Ky.), however, argued that the change to the filibuster, which Republicans made with a party-line vote Thursday, would restore the Senate to its tradition of not filibustering judicial nominees.
He praised Gorsuch’s credentials Friday as “sterling,” his record as “excellent” and his judicial temperament as “ideal.” He said he wished “that important aspects of this process had played out differently” but held out hope that “today is a new day” and that Democrats would not hold a grudge as the chamber considers other priorities this year.
Some Democrats questioned whether it was worth getting into a showdown with McConnell over Gorsuch and losing their power to filibuster future Supreme Court nominees. These few dissenters thought it might be tougher for Republicans to change the rules if a swing seat on the court became open later on in Trump’s term, when he might have less political capital. Democratic leaders, however, disagreed, arguing that McConnell would be just as likely like to change the rules in the future.
Democrats tried to block Gorsuch because they said his rulings tended to favor powerful interests over average people and also because they were still furious over Republicans’ treatment of Merrick Garland, whom President Obama nominated a year ago to fill the vacancy left by Scalia.
McConnell announced immediately after Scalia’s death that Garland would not receive consideration by the GOP-controlled Senate and that the winner of the presidential election should pick the nominee. Democrats argued that decision broke 230 years of precedent and would best be remedied by Gorsuch withdrawing and Trump picking a “more mainstream candidate.”
That proposal went nowhere as Republicans argued that Trump made clear during last year’s campaign that he would pick a judge from a list of 21 conservatives, on which Gorsuch was included.
A CNN exit poll showed that 56 percent of Trump voters said the Supreme Court was “the important factor” in their votes, and 46 percent said it was “an important factor.”
Gorsuch isn’t likely to change the most recent ideological balance of the court as he replaces one of its most outspoken and conservative jurists. He called Scalia a “mentor” at his confirmation hearings and, like his predecessor did, takes an “originalist” approach to the law meant to hew to the intentions of the Founding Fathers and follow legal language strictly. That approach became a sticking point for Democrats, who criticized him for relying on what they called overly literal readings of the law to decide in favor of those in power, such as a trucking company in TransAm Trucking v. Administrative Review Board that fired a driver who refused to stay for hours with a disabled vehicle in freezing weather.
Republicans countered by touting Gorsuch’s academic and professional credentials; his clerkships with two Supreme Court justices, Anthony Kennedy and Byron White; his unanimous rating of well-qualified by the American Bar Association; and his record of deciding with the majority in 99 percent of the cases he heard.
Gorsuch appeared poised to sail through the Senate as Democrats earlier this year were more focused on Trump’s more controversial Cabinet appointees, such as Secretary of Education Betsy DeVos and Attorney General Jeff Sessions. Democrats had failed to dig up any seriously damaging writings, statements or indiscretions, and even Ruth Bader Ginsburg, the most liberal justice on the high court, said Gorsuch was “very easy to get along with.”
The lack of strong early resistance angered liberal groups, including NARAL Pro-Choice America, MoveOn.Org and the Services Employee International Union, which wrote a stern letter to Democratic senators early last month exhorting them to “do better.” The Judicial Crisis Network, a conservative group backing Gorsuch, countered pressure from the left by launching a $10 million advertising campaign to bolster his nomination. The National Rifle Association also poured in $1 million to help Gorsuch.
It became apparent Monday, when several Democrats who were on the fence came out against his nomination, that Gorsuch would not win confirmation unless Republicans moved to eliminate the filibuster. By Monday evening, 42 Democrats and one Independent, Sen. Bernie Sanders (Vt.), had announced they would block the final vote. McConnell announced the next day that he had the votes to trigger the nuclear option.
Vice President Pence presided over the vote. Sen. Johnny Isakson (R-Ga.), who recently underwent back surgery, missed it.
– Updated at 12:47 p.m.