WASHINGTON — Judge Neil Gorsuch was officially sworn in by President Donald Trump as the 113th justice of the U.S. Supreme Court in two ceremonies Monday.
Gorsuch was confirmed by a vote of the full Senate early Friday, bringing an end to a bitter partisan struggle over his nomination, starting a new era for the Senate and the high court, and marking the biggest political win for the Trump administration in its first 100 days.
Chief Justice John Roberts administered the first oath of office to Gorsuch in a private ceremony at 9am at the Supreme Court. At 11am, Justice Anthony Kennedy — for whom Gorsuch once clerked — administered the second oath of office in a public ceremony at the White House.
The final Senate vote of 54-45 (with Georgia Republican Johnny Isakson not voting, as he just had back surgery) to find a replacement for the late Justice Antonin Scalia, who died a year ago, belied the ugly confirmation process that included angry and politically charged accusations against the nominee, the use of the filibuster by the Democrat minority and the adoption of the constitutional option by the majority Republicans. President Trump greeted the confirmation of his first Supreme Court with some satisfaction. He issued a statement immediately after the vote, saying:
“It is a great honor to announce the historic confirmation of Judge Neil M. Gorsuch as associate justice to the Supreme Court of the United States. Judge Gorsuch’s confirmation process was one of the most transparent and accessible in history, and his judicial temperament, exceptional intellect, unparalleled integrity, and record of independence makes him the perfect choice to serve on the nation’s highest court. As a deep believer in the rule of law, Judge Gorsuch will serve the American people with distinction as he continues to faithfully and vigorously defend our Constitution.”
From the first announcement, on Jan. 31, 2017, that President Trump had chosen the 49-year-old Gorsuch — the youngest nominee to the high court since 43-year-old Clarence Thomas in 1991 — the political battle lines had been drawn.
The Democrats in the Senate were opposed to the very idea of the new nominee, as they were still enraged over the decision of Senate Republicans not to consider President Barack Obama’s nomination of Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit back in March 2016. The reasoning at the time by the Republican leadership was that the ultimate decision of a nominee should be left to the American people in an election year, but that was angrily denounced by Senate Democrats.
In the end, to the horror of the liberal and media establishment, Trump defeated Hillary Clinton for the presidency, and he sent the Gorsuch nomination to the Senate on Feb. 1.
In a different era, the Gorsuch nomination would have been readily approved by the Senate. The judge is eminently qualified, an experienced and intellectually brilliant jurist who received the American Bar Association’s top rating — “well-qualified” — but at the start of the Senate confirmation hearing March 20 before the Senate Judiciary Committee, the Democratic senators made it very clear that they were opposed to the nominee and launched more than 20 hours of questioning over two brutal days.
The nominee proved more than equal to the task of responding to the inquisition, and by the end of the hearing before the committee, the frustration on the part of the Democrats and their supporters was palpable.
On April 3, the Judiciary Committee approved the nomination by a partisan 11-9 vote, but by then, Minority Leader Sen. Chuck Schumer, D-New York, had already declared the intent of the Democrats to filibuster the nominee, something that had never been done in the history of the Senate (with the exception of a bipartisan filibuster of Abe Fortas in 1968 over accusations of corruption).
The official filibuster was enacted April 6, and that same day the Senate Republicans invoked the “nuclear option,” a procedural precedent that ended the option of a filibuster for Supreme Court nominees to require only a simple majority of votes, rather than the usual 60 votes to end debate.
The next day, the Senate confirmed Gorsuch’s nomination. Three Democrats voted with the Republicans — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana.
The ramifications for the Senate remain to be seen, but the end of the filibuster concluded a politicization of the nomination process that dates back to 1987 and the decision by the Democrats to wage an all-out political war on President Ronald Reagan’s Supreme Court nominee Judge Robert Bork that ended with the withdrawal of his nomination.
The political obstructionism and opposition by both parties reached a point of no return in 2013, when then-Majority Leader Harry Reid, D-Nevada, first used the option to end filibusters for executive branch and judicial nominees except for the Supreme Court. Many senators predicted at the time that filibusters of the high-court nominees would inevitably be included in this prohibition, and the Gorsuch nomination proved them right.
Ominously, senators are already predicting even more partisan struggles and the specter that filibusters might be blocked even for legislation, a change that would give the majority in the Senate massive powers to drive through legislation in a body traditionally revered for its deliberative and intentionally slow pace. Speaking Friday before the Senate, Schumer proclaimed:
“The nuclear option means the end of a long history of consensus on Supreme Court nominations. It weakens the standing of the Senate as a whole as a check on the president’s ability to shape the judiciary. In a ‘post-nuclear’ world, if the Senate and the presidency are in the hands of the same party, there is no incentive to even speak to the Senate minority. That’s a recipe for more conflict and bad blood between the parties, not less. The cooling saucer of the Senate will get considerably hotter.”
Majority Leader Mitch McConnell, R-Kentucky, who was responsible for the politically bold decision not to proceed with the Garland nomination and to break the filibuster, reminded the Democrats of the tradition never to filibuster Supreme Court nominees. “I hope my Democratic friends,” he said, “will take this moment to reflect and perhaps consider a turning point in their outlook going forward.”
There is little indication that will happen.
Key Cases Ahead
Aside from a host of potentially pressing cases — including Second Amendment rights, voter ID laws and Trump’s executive order on immigration — Gorsuch arrives on the court at a critical moment for cases involving religious liberty.
The new justice will take part in the April 19 oral arguments in Trinity Lutheran Church v. Pauley, a case involving a Missouri church’s eligibility for a state reimbursement program. The state of Missouri denied a grant to the licensed preschool and day care at Trinity Lutheran on the claim that the grant would violate separation of church and state, even though the funds would benefit the entire community and not just church members.
A second even more prominent case has not been accepted by the court, but it may now that there are nine justices: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the result of the state’s civil-rights commission ruling that a Lakewood, Colorado, baker may not refuse to serve a same-sex wedding on the grounds of personal religious belief.
Given Gorsuch’s previous legal opinions in defense of religious liberty — most notably in favor of Hobby Lobby and the Little Sisters of the Poor regarding the infamous HHS contraceptive mandate — he may emerge as the immediate and decisive vote in preserving America’s rich tradition of religious freedom. As Grazie Pozo Christie, policy adviser with The Catholic Association, said Friday after the confirmation,
“We applaud the confirmation of Judge Neil Gorsuch to the Supreme Court and hail it as a great day for our nation. A sober and fair-minded intellectual committed to the letter of the law and not to his own opinion, Judge Gorsuch is a fitting replacement for the late, great Justice Scalia. Our Constitution makes it possible for people of faith to thrive and prosper in this country and has been a sturdy framework for the religious liberties we enjoy. A Supreme Court justice like Judge Gorsuch, who understands and values our founding documents and hews closely to their meaning, will help ensure that all Americans can continue to prosper and that we, as Catholics, remain free in exercising our religious principles.”
Matthew Bunson is a senior editor with the Register.
He covered the Gorsuch hearings in Washington.