Neil Gorsuch’s confirmation as a Supreme Court justice appeared all but certain after his smooth and appealing testimony before the Senate Judiciary Committee. He came across as “almost too good,” one of his backers said. He was the beneficiary of a well-financed effort by outside groups. And Senate Majority Leader Mitch McConnell and President Trump were strongly committed to his confirmation.
Yet in the days before floor debate began, his nomination was in jeopardy. Three Republican senators wouldn’t commit to vote for the “nuclear option” to prevent a Democratic filibuster from blocking Gorsuch’s confirmation.
Susan Collins of Maine and Lisa Murkowski of Alaska, both pro-choice on abortion, raised the fear that ending the filibuster of Supreme Court nominee could lead to an anti-abortion majority on the court.
Bob Corker of Tennessee had a different concern. He “waved the banner of tradition,” a lobbyist said. He defended the filibuster as a worthy tradition of the Senate that promotes compromise and bipartisanship. Killing the filibuster in Supreme Court nominations could lead to eliminating it entirely, even in debates over legislation. McConnell insists this won’t happen.
John McCain of Arizona didn’t threaten to bolt. But he said in a floor speech that he too wanted to protect “the traditions and practices of the Senate.” Only reluctantly had he agreed to vote for the nuclear option.
At the heart of the turmoil sat Senate Minority Leader Chuck Schumer. He sought to make a deal with the holdouts. If they joined all 48 Democrats and voted against the nuclear option, he would allow Gorsuch to be confirmed.
Then, if Trump picked a second nominee, one who might vote to overturn Roe v. Wade, the three Republicans and the Democrats could use the filibuster to block the nominee’s confirmation. Or something like that. The precise terms of a deal are unclear. But “there was no deal that could be made that wasn’t a bad deal,” McConnell says.
Though it created anxiety in the Gorsuch camp, the proposed deal went nowhere. Actually it never materialized at all. The offer to let Gorsuch sail through was unconvincing since he was likely to be confirmed with or without Schumer’s help. On Friday, he was confirmed by a 54-45 vote. He’s expected to be sworn in at the White House on Monday by Trump.
After the vote, Gorsuch told McConnell he could be on the court for 20 years. “I have more in mind—Strom Thurmond,” McConnell said. Thurmond was a senator for 48 years, retiring at age 100.
McConnell, more than Trump or even the nominee himself, was responsible for elevating Gorsuch, a federal appeals court judge, to the Supreme Court. When Justice Antonin Scalia died in February 2016, McConnell declared the seat would not be filled by President Obama in his last year in office. Democrats complained and Obama nominated Judge Merrick Garland to succeed Scalia. But McConnell prevailed. “The only issue was ‘can you take the heat?’ ” McConnell could. He never flinched.
Besides the holdouts, there were problems with unruly Gorsuch backers. His former law clerks were recruited to promote his confirmation. And while some were effective, others refused to stick to the talking points. “They thought they knew better,” a Gorsuch ally said. Instead, they went off the reservation and had to be reined in.
Update, April 9: Gorsuch’s spokeswoman disputed the notion that some of the clerks were difficult: “The clerks were an integral and invaluable part of the team, playing a critical role in coordinating rapid response, hearing prep, and building support that made Judge Gorsuch’s confirmation effort such a success,” said Liz Johnson.”
The Heritage Foundation, meanwhile, lobbied constantly for the “two-speech rule” as a substitute for cloture in halting filibusters. It’s a complicated process that would involve overriding the Senate parliamentarian. However, the idea never caught on with the Gorsuch camp. It was a distraction.
The holdouts generated the most distress. At one point, it was feared that Collins and Murkowski were lost, even though they admired Gorsuch. Murkowski “really liked Gorsuch and never expressed” any qualms, a pro-confirmation lobbyist said. Collins was “iffy all along.” So the efforts to persuade the two senators to back the nuclear option—thus guaranteeing Gorsuch would wind up on the court—continued. In the end, they weren’t lost.
The pro-Gorsuch campaign emphasized his popularity among legal experts, GOP politicians, and the Republican grassroots—practically everyone except mean-spirited Democrats and left-wing crazies. This allowed Republicans to dismiss the charge that Gorsuch is a cold-hearted right-wing extremist as outrageous.
Corker was described as “iffy until the final few days.” As a result, he got the full treatment from the Gorsuch forces. He was bombarded with phone calls, letters, digital messages, and newspaper editorials. “Anything that could be brought to bear was brought to bear on Corker,” a pro-Gorsuch leader said.
The senator didn’t like the treatment. A friend of his confronted an ally of Gorsuch on Capitol Hill and demanded the barrage of phone calls to Corker’s office stop. They’ll stop, he was informed, when Corker tells Senate leaders he will vote for the nuclear option.
An editorial in the Wall Street Journal appeared to be aimed squarely at Corker, Collins, and Murkowski—especially at Corker. Schumer was portraying Republicans as “radicals if they change Senate rules” to break a filibuster, the editorial said.
“The gambit is to coax at least three of the 52 senators to cut a deal with Democrats that hands the minority political leverage over President Trump’s judicial nominations,” it continued. “But the real radical act is the Supreme Court filibuster,” not the tactic used to nullify it.
The implication was hard to miss. Without naming Collins, Murkowski, and Collins, it suggested: We know who you are and you’d better not make a deal with Schumer the deceiver.
When I interviewed McConnell shortly after Gorsuch was confirmed, he wanted to talk before I asked a question. He had plenty to say. It’s rare there are things “you can say you did on your own.” One was his snap decision to bar the Senate from taking up a Supreme Court nomination until a new president took office. Only the majority leader could do this. “It is the most consequential decision I ever made,” McConnell said.
And it turned out the open seat was an “electoral asset” for Trump. Voters didn’t like him or Hillary Clinton. But once filling the seat became the “principal issue,” Trump had the advantage. Everyone knew she would dump Garland, a moderate, for someone further to the left.
“We didn’t know if the president would be a conservative or not,” McConnell said. However, he had promised to pick a nominee from a list of 20 conservative jurists. (McConnell had advocated such a list.) “This reassured conservatives.” The result: he got 90 percent of the Republican vote and won.
McConnell gave Trump credit for nominating “the single best circuit court judge in the country. It made my job easier.” He described the job as “getting all my frogs in the wheelbarrow.” On cloture, the nuclear option, and confirmation, he got all 52 frogs.
Rather than scrapping tradition, the end of the judicial filibuster restores a longstanding tradition of not using it against nominees for judgeships. That tradition was tossed out in 2003 when Democrats began filibustering Republican nominees. That was new.
The old way, the traditional way, was followed in the confirmation battle over Clarence Thomas in 1990. To say he was a highly controversial pick is putting it mildly. Despite this, no one called for a filibuster or said there’s a rule that says 60 votes are required. Thomas was confirmed, 52-48.
McConnell didn’t say so, but I suspect he’s ready and eager for nominee No. 2. “I think we’re going to see a quality nominee,” he told me. “Even at 51 votes, it’s important for the nominee to be of high quality.” Someone like Gorsuch, for instance.
