When a federal court rules on a temporary stop to President Trump's immigration ban, it could set the raging issue on a collision course with an already pitched battle over Judge Neil Gorsuch's nomination to the U.S. Supreme Court.
A 9th Circuit panel heard oral arguments Tuesday evening from top Justice Department lawyers who support Trump's ban and want a temporary restraining order against the ban lifted.
There is already high-stakes political battle brewing over the new administration's immigration policy. Depending on how the 9th Circuit rules, the restraining order could end up before an eight-justice Supreme Court that may divide evenly along ideological lines. Gorsuch would then be waiting in the wings to become the decisive vote in the case.
For Senate Republicans, this would create an added incentive to move swiftly on confirming Gorsuch. But it would also add intensity to the pleas of liberal activists, who are already pressuring Democrats to pull out all stops to block the Gorsuch nomination.
Republicans currently need eight Democratic Senators to join them to secure the support necessary to avoid a filibuster of the Gorsuch pick. If Republicans don't come up with the votes to avoid the filibuster, Senate Majority Leader Mitch McConnell, R-Ky., would have to consider using the "nuclear option" to change the Senate rules to allow Gorsuch to be confirmed by a simple majority.
The Heritage Foundation's John Malcolm told reporters Tuesday he expects Gorsuch would be seated on the Supreme Court before it decides whether to tackle a case involving the merits of the ban—aside from anything the high court might do regarding the temporary restraining order.
The timing of the 9th Circuit's proceedings could move the scene of the battle over the ban from large protests at airports nationwide to the floor of the Senate, where hearings on Gorsuch's nomination will happen.
"I would assume in confirmation hearings since [Gorsuch] might very well be on the Supreme Court and this issue might very well come before him, he would find a very deft way of ducking that issue about how he would rule in that case while giving a broader perspective," Malcolm said of how Gorsuch would likely choose to handle questions about the ban.
Democrats are poised to make the quick-moving battle in the courts a central theme in Gorsuch's confirmation proceedings.
The makings of the fight began on Saturday, when Trump tweeted about the "so-called judge" who reversed the president's ban on migration from seven predominantly Muslim countries with a temporary restraining order. Soon thereafter, Senate Minority Leader Chuck Schumer of New York hinted that the ban and Trump's response would come front-and-center in the fight over Gorsuch in a statement.
"With each action testing the Constitution, and each personal attack on a judge, President Trump raises the bar even higher for Judge Gorsuch's nomination to serve on the Supreme Court," Schumer said last weekend. "His ability to be an independent check will be front and center throughout the confirmation process." Schumer said he raised the issue with Gorsuch when they met privately on Tuesday.
Regardless of what the 9th Circuit decides about the temporary restraining order, the White House expressed confidence in its defense of the merit of the ban.
"Tonight is about the restraining order, it has nothing to do with the merits of the case and that's why I think we feel confident," said White House spokesman Sean Spicer in a press briefing. "Regardless of what happens tonight, the merits of the case still need to be discussed."
How Gorsuch discusses the merits of Trump's ban could have a determinative impact on the judge's chances of confirmation.