Conservative media figures celebrated President Donald Trump’s nomination of federal appellate Judge Neil Gorsuch to the Supreme Court and suggested the Senate should confirm him. This view is hypocritical in light of the historic Senate GOP obstruction used to kill former President Barack Obama’s nomination of Judge Merrick Garland, who was a far less ideological choice than Gorsuch.
Conservatives Call For Gorsuch To Fill Supreme Court Vacancy
Conservative Pundit Hugh Hewitt: “Bravo. Judge Neil Gorsuch Soon To Fill The Seat Of An Extraordinary Man On #SCOTUS.” Hewitt, who cheered the obstruction of Obama nominee Merrick Garland, celebrated Trump’s pick on Twitter:
Conservative Pundit Erick Erickson: “THANK YOU PRESIDENT TRUMP.” Erickson, who backed GOP obstruction of Garland, sent a series of tweets indicating his preference that the Senate confirm Gorsuch, including retweeting Sen. Ben Sasse’s (R-NE) call for Gorsuch to be confirmed immediately:
National Review Legal Blogger Ed Whelan Calls For GOP To Use The Nuclear Option To Confirm Gorsuch. Whelan, who said that he hoped a Democratic president would not fill the Scalia vacancy, argued that Senate Republicans should change Senate rules to allow Gorsuch to be confirmed by a majority vote. Under present rules Gorsuch would need 60 votes:
Fox News Host Sean Hannity: “I Hope” Senate Majority Leader Mitch McConnell (R-KY) “Is Ready To Use Nuclear Option.” Hannity, who backed GOP leadership calls following Scalia’s death to not consider any Obama nominee, called for the suspension of the Senate rules that all Obama Supreme Court nominees were considered under:
National Rifle Association: “We URGE The Senate To Swiftly Confirm Judge Gorsuch.” The NRA, which was one of the leading advocacy groups urging the blockade of Garland, tweeted a call for Gorsuch’s swift confirmation:
Breitbart.com’s AWR Hawkins: “Need To Quickly Confirm Gorsuch.” Hawkins, a writer for pro-Trump outlet Breitbart who approvingly cited false claims about Garland meant to “bury” his nomination, called for Gorsuch’s confirmation and linked to an article where he erroneously claimed Gorsuch wrote an opinion calling the Second Amendment an individual right (the opinion cited was actually written by one of Gorsuch’s colleagues on the 10th Circuit):
Garland’s Nomination Was Withdrawn Following Historic GOP Obstructionism
Garland’s Nomination Expired On January 3 -- 293 Days After He Was Nominated -- Without Him Receiving A Public Hearing Or A Vote By The Full Senate. Garland’s nomination expired at the close of the 114th Congress on January 3. Garland had been nominated on March 16, 2016. UPI reported, “Garland's nomination lasted for a total of 293 days -- the longest period in Supreme Court history, by far -- without ever getting a confirmation hearing, or a hearing of any kind, from Senate Republicans.” Obama had indicated in December that Garland would return to his job as chief judge of the D.C. Circuit. [United Press International, 1/3/17; The Huffington Post, 12/15/16]
Prior To Garland, Every Supreme Court Nominee Since 1875 “Received A Vote Within 125 Days Of Nomination.” Explaining modern precedents surrounding Supreme Court nomination and confirmation norms, the Obama administration wrote on its website that “since 1875, every nominee has received a hearing or a vote” and that “since 1975, the average time from nomination to confirmation is 67 days”:
Every nominee has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year -- more than 300 days -- to consider and confirm a nominee. [WhiteHouse.gov via Media Matters, 3/16/16]
Tactics Used By Republicans Against Merrick Garland And Other Obama Judicial Nominees Were Unprecedented
Prior To GOP Obstruction Of Garland, The Modern Confirmation Process Routinely Involved Public Hearings And Consideration By The Full Senate. According to the Congressional Research Service, of more than 40 Supreme Court nominations made since the Senate Judiciary Committee began the practice of holding public hearings to question nominees in 1939, every nominee that was not withdrawn by the president received a public hearing or vote by the full Senate. Justices James Byrnes and Harold Burton were confirmed by the Senate without holding public hearings in 1941 and 1945, respectively. No Judiciary Committee action was taken on initial nominations of Justices John Harlan II and John Roberts, but both were re-nominated in short order, given public hearings, and confirmed by the Senate. In 2005, President George W. Bush withdrew his nomination of Harriet Miers before hearings could be held. In every other case, the nominee received one or more public hearings in the Judiciary Committee. [Supreme Court Nominations, 1789 - 2009: Actions by the Senate, the Judiciary Committee, and the President, Congressional Research Service, 5/13/2009]
PolitiFact: McConnell's Argument That Refusal To Fill Vacancy “Follow[s] A Longstanding Tradition” Was “Misleading” And “Not Accurate.” PolitiFact concluded that a statement made by Sen. Mitch McConnell (R-KY) shortly after Garland’s nomination that Senate Republicans were “following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year” was “misleading” and “false.” The fact-checking site noted that there is limited precedent for a Supreme Court nomination during an election year, and that the Senate “has chosen not to fill a Supreme Court seat that opens up during an election year just once in the past 100 years.” [PolitiFact, 3/22/16]
PolitiFact: “We Can't Find A Time When A Democratic Senate Refused To Hear A Republican President's Nominee” For The Supreme Court. While evaluating a claim by former Sen. Harry Reid (D-NV) about how Democratic-majority Senates had treated Republican presidents’ nominations to the Supreme Court, PolitiFact concluded, “We can't find a time when a Democratic Senate refused to hear a Republican president's nominee. Even if they were opposed, they allowed the nominee to come to a comfirmation (sic) vote”:
Reid said Senate Democrats “have never held up a Supreme Court nomination.”
Reid steps a little too far in saying Democrats “have never held up” a nomination. They were chiefly responsible for Bork’s failed nomination, a turning point in the political nature of Supreme Court nominations, and they at least symbolically attempted to hold up Alito’s confirmation in 2005.
However, we can't find a time when a Democratic Senate refused to hear a Republican president's nominee. Even if they were opposed, they allowed the nominee to come to a comfirmation (sic) vote.
We rate the statement Mostly True. [PolitiFact, 3/20/16]
Despite Republican Claims, No Tradition Existed Against Filling Supreme Court Vacancies During Presidential Election Years. While Senate Republicans often argued that it was improper to fill a vacancy in the politicized environment of a presidential election year, an analysis by SCOTUSblog found, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election." SCOTUSblog listed six instances where vacancies were filled during election years, and also detailed two cases since 1900 where “presidents were not able to nominate and confirm a successor during an election year” by describing how neither case “reflects a practice of leaving a seat open on the Supreme Court until after the election”:
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.
In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year. But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.
On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956. With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957. The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.
And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but the Fortas nomination was the target of a bipartisan filibuster -- principally in reaction to the Warren Court's liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year. That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench. [SCOTUSblog, 2/13/16]
Beyond Garland, Senate GOP Presided Over Unprecedented Blocking Of Federal Judicial Nominees. After gaining control of the Senate following the 2014 elections, Republicans confirmed a “historically low number” of federal judges, according to a report from Mother Jones:
While Democrats have publicly hammered the GOP's refusal to consider Merrick Garland's nomination to the Supreme Court, Republicans have mounted an equally important, if quieter, effort to block President Barack Obama's nominees to other federal courts, creating widespread vacancies in courts across the country.
Since taking control of the Senate in early 2015, Republicans have confirmed only 17 federal judges, a historically low number. The Senate confirmed just 11 judges in 2015, the fewest since 1960. There have been only two appellate court judges approved since Republicans took control, with seven appeals court nominations left pending. If the Senate doesn't confirm any appellate judges this year, it will have confirmed the fewest since the 1897-98 session, when there were just 25 circuit court judges nationwide, compared with 179 now.
“Historically, we're in nearly unprecedented ground here,” says Kyle Barry, director of justice programs at the liberal Alliance for Justice. “What's happening with Judge Garland is really part and parcel with how the Senate has been treating judicial nominees generally. The pace has been so historically bad, we've been seeing what amounts to outright obstruction.” [Mother Jones, 5/6/16]
Note: After Mother Jones’ May 2016 report, the Senate GOP continued its historic obstruction, allowing the confirmation of only three district court judges and zero appellate court judges during the remainder of Obama’s presidency. In total, the GOP Senate allowed just 20 confirmations -- two appellate judges and 18 district court judges -- during the 114th Congress. By comparison, during the 110th Congress -- the last session of Congress during the George W. Bush presidency -- a Democratic majority confirmed 67 nominations -- 10 appellate judges and 57 district court judges.
Garland Had Strong Moderate Credentials
CBS Chief Legal Correspondent Jan Crawford: Garland “Is Considered The Best Candidate That Republicans Could Hope For From A Democratic President." [CBS, CBS This Morning, via Media Matters, 3/16/16]
Houston Chronicle: “Garland Is Regarded By Legal Scholars As A Moderate.” During speculation in 2010 that Obama would choose Garland to fill a Supreme Court vacancy, the Houston Chronicle reported that “Garland is regarded by legal scholars as a moderate, and he is well respected by both Democrats and Republicans in Washington.” [ Houston Chronicle, 4/14/10]
Conservative Pundit George Will: GOP Opposition To Garland Is “A Partisan Reflex In Search Of A Justifying Principle.” Will praised what he saw as conservative streaks in Garland’s judicial record in a Washington Post column, writing that on the D.C. Circuit, “Garland has practiced what too many conservatives have preached -- ‘deference’ in the name of ‘judicial restraint’ toward Congress, and toward the executive branch and its appendages in administering congressional enactments”:
The Republican Party's incoherent response to the Supreme Court vacancy is a partisan reflex in search of a justifying principle. The multiplicity of Republican rationalizations for their refusal to even consider Merrick B. Garland radiates insincerity.
This legal doctrine actually is germane to Garland. He is the most important member (chief judge) of the nation's second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached -- “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.
In his record of deference, Garland resembles two justices nominated by presidents George W. Bush and Ronald Reagan, respectively -- Chief Justice John G. Roberts Jr. and, even more, Scalia, who seems to be more revered than read by many conservatives. Garland's reluctance to restrict the administrative state's discretion would represent continuity in the chair he would fill. [The Washington Post, 3/18/16]
SCOTUSBlog's Tom Goldstein: Garland Would Have Been The Court's “Rock-Solid Center.” During a cable news appearance following Garland’s nomination, SCOTUSBlog's Tom Goldstein stated that Garland would be part of the “rock-solid center” of the Supreme Court, if he were to be confirmed:
BRIAN WILLIAMS: Tom, while I have you, as a young man and a freshly minted lawyer, he clerked on the Supreme Court for not just any justice, but Justice William Brennan. Among the liberal lions of the last 100 years. A man who made no bones about the mathematics and lobbying on the Supreme Court, often would hold up his hand showing five fingers and saying around here, there's only one way to get things done. And that is a 5-4 vote of the Supreme Court. How much of that rubs off on a young lawyer? He certainly didn't grow up to be the liberal on the federal bench that Brennan was. You find his decisions in your ongoing years-long analysis to be slightly left of center.
TOM GOLDSTEIN: Yeah, I don't think very much. Judge Garland, Chief Judge Garland certainly absorbed from all kinds of different mentors. And so, he really did take to heart his experience with the very liberal William Brennan. But in the wake of that, you just don't see anything like Justice Brennan's very liberal ideology in basically anything that he's done. When you have a judge who almost never votes to overturn criminal convictions as Chief Judge Garland's history has been, when he regularly disagrees with more liberal colleagues in those cases, you know that you're not talking about someone who is going to be an intellectual leader of the Supreme Court's left. You're talking about somebody who is going to be, kind of, it's rock-solid center -- if he can get onto the court. [MSNBC, The Place for Politics, 3/16/16]
Even Trump Nominee Neil Gorsuch Complained That Republicans Obstructed Garland’s Nomination To The D.C. Circuit. A New York Times profile of Gorsuch noted that in 2002, he criticized the long delay Garland experienced before being conformed to the D.C. Circuit in 1997, calling Garland one of “the finest lawyers” of his generation and writing, “Some of the most impressive judicial nominees are grossly mistreated”:
In a 2002 article reflecting on Justice White’s death, Mr. Gorsuch criticized the Senate’s handling of judicial confirmations. “Some of the most impressive judicial nominees are grossly mistreated,” he said, mentioning two candidates for the federal appeals court in Washington who he said were “widely considered to be among the finest lawyers of their generation.”
One was John G. Roberts Jr., who went on to become chief justice of the United States. The other was Judge Merrick B. Garland, who was confirmed to the appeals court in 1997 after a long delay, but whose nomination to Justice Scalia’s seat last year was blocked by Senate Republicans. [The New York Times, 1/31/17]
But Gorsuch Is Regarded As Ideologically To The Right Of The Late Justice Antonin Scalia
Gorsuch Has A “Justicial Common Space” Score To The Right Of Scalia. The New York Times published a graphic of current Supreme Court justices’ Judicial Common Space scores, a quantitative metric for measuring a judge’s ideology:
FiveThirtyEight: Gorsuch Is A “Scalia Clone.” FiveThirtyEight’s analysis of Trump’s pick also relied on Judicial Common Space scores to conclude, “Ideologically, Gorsuch would almost certainly represent a reliably conservative vote and voice, restoring the tenuous balance on the court that existed before Scalia’s death”:
Ideologically, Gorsuch would almost certainly represent a reliably conservative vote and voice, restoring the tenuous balance on the court that existed before Scalia’s death. According to ”judicial common space” scores, developed by a team of political scientists and legal scholars, Gorsuch would be the most conservative justice save for the silent stalwart Justice Clarence Thomas and would sit somewhere just to the right of the ideological space occupied by Scalia. [FiveThirtyEight.com, 1/31/17]
Politico Magazine: “Trump Picks Scalia 2.0.” University of Michigan law professor Richard Primus wrote that “Gorsuch is the closest thing to the man whose death left the vacancy,” citing Gorsuch’s “deeply conservative” background:
Last spring, trying to shore up his conservative credentials for Hugh Hewitt’s radio audience, the insurgent candidate Donald Trump laid down a marker about his first Supreme Court nominee: “The ideal,” he told the host, “would be Scalia reincarnated.”
In Judge Neil Gorsuch, he’s not far from delivering on his promise. Of all the candidates Trump shortlisted for the Supreme Court, Gorsuch is the closest thing to the man whose death left the vacancy. Gorsuch may not have Antonin Scalia’s colorful persona, but he shares any number of Scalia’s other signature traits. He is highly intelligent, legally skilled, and a sharp writer. And he’s deeply conservative. In a judiciary where few judges actually have developed theories of constitutional interpretation, Judge Gorsuch has one, and by and large it is the same originalist approach that Scalia generally took. Gorsuch also shares Scalia’s basic views on any number of hot-button constitutional issues, including abortion, firearms, affirmative action, and capital punishment. All in all, you wouldn’t be far off characterizing Gorsuch as Scalia 2.0. [Politico Magazine, 1/31/17]