On Friday morning, the U.S. Senate confirmed the nomination of Judge Neil M. Gorsuch to the Supreme Court.
Gorsuch’s nomination followed months of acrimony between the Republicans and Democrats after the GOP-led Senate exercised its privilege and refused to consider Barack Obama’s nomination of Judge Merrick B. Garland to fill the vacancy left by the death of Justice Antonin Scalia in February 2016.
President Trump had stated during the 2016 presidential campaign that he intended to nominate someone in Scalia’s conservative mold, a feat he achieved with the nomination of Gorsuch, who is only 49 years old.
Gorsuch’s nomination was assured once the GOP invoked the so-called nuclear option to obviate the filibuster waged by the Democrats, who sought to deny Gorsuch the 60 votes required to advance to a final vote. The use of the nuclear option allowed Gorsuch to pass with a simple majority vote; he received 53 votes endorsing his nomination with 45 opposing him.
Gorsuch, a graduate of Columbia, Harvard and Oxford, served as a law clerk in 1993 and 1994 to Justice Byron R. White, who died in 2002, and Justice Anthony M. Kennedy, later joining the United States Court of Appeals for the 10th Circuit in Denver in 2006.
Gorsuch’s reputation as an originalist preceded his nomination, triggering consternation among Democrats who want to bend the Constitution to their will, as articulated during his nomination process by California Senator Dianne Feinstein, who said originalism “ignores the intent of the framers … It’s a framework on which to build. I firmly believe the Constitution is a living document that evolves as our country evolves.”
The politicization of the nominating process for a Supreme Court Justice was launched by Democrats in the brutal treatment of Judge Robert Bork in 1987; former vice-president Joe Biden, then a senator, played a vital part in that nefarious effort. Bork later discussed the events in detail in his book The Tempting of America. The Democrats continued their political attacks on a Supreme Court nomination when Judge Clarence Thomas was nominated to the court in 1991.
Ironically, considering the Democrats’ whining about the GOP refusing to consider Garland’s nomination, it was Biden, in 1992, when he was Chairman of the Judiciary Committee, giving a speech on the Senate floor arguing that standards for considering a Supreme Court nominee in an election year should be different. He said:
Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it, but that would not be our intention. It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.
Gorsuch’s nomination was assured once the GOP invoked the so-called nuclear option to obviate the filibuster waged by the Democrats.
The first significant case likely facing Gorsuch will be Trinity Lutheran Church v. Comer, which revolves around equal protection principles and the First Amendment’s guarantee of free exercise of religion.