And how to repeat it
Thanks to the confirmation of Neil Gorsuch as a justice, the Supreme Court will now once again have a relatively solid conservative bloc of four. It will be capable of making law when Justice Anthony Kennedy joins it. That’s roughly as much strength as conservatives have had on the bench since the Warren Court. And it puts conservatives only one vote shy of their first majority in modern times.
Two men, above all, are responsible for this achievement. Senate majority leader Mitch McConnell made it possible by announcing, the day that Justice Antonin Scalia died, that the Senate would not take up any nomination to fill his seat until a new president took office. It was a bold move that many other Republicans second-guessed, especially during those periods of the presidential campaign when Hillary Clinton was substantially ahead in the polls. But McConnell persisted in his course.
Donald Trump made it possible, too. He said he would nominate a conservative akin to Scalia, released two lists of possible nominees from which he said he would probably choose, won the election, and then made good on his campaign rhetoric.
During the campaign, Trump told Leonard Leo, the executive vice president of the Federalist Society, that he was thinking of producing a list. Trump asked what Leo thought of the idea. “I thought it was a brilliant stroke,” Leo recalls. He asked Trump why he wanted to announce a list, and Trump replied that it was because “nobody knows who I am” on these issues. He needed to get conservatives to identify him with the cause of conservative judges. He was branding himself, Leo notes.
Successfully. Trump has said, in public and on more than one occasion, that his promises on judges helped get him elected. He’s right. In exit polls, 21 percent of respondents said Supreme Court appointments were “the most important factor” in determining their votes. Trump beat Clinton among them by 56 to 41 percent. McConnell probably helped Trump win the election by raising the Supreme Court’s importance as an issue: The presidential race came down, after all, to 80,000 votes in three states.
While the backdrop to Gorsuch’s nomination and confirmation — a previous blocked nomination from a president of the other party — was unusual, a few lessons from the experience will have continuing relevance.
The first is that elections matter — and not just presidential elections, but elections for the Senate. If a Democratic Senate had been elected along with Trump, there’s no way it would have confirmed a conservative nominee of his. Not after President Obama had been denied his nominee. If Democrats take the Senate in 2018, as unlikely as it now looks, they won’t let Trump fill a subsequent vacancy with a conservative either.
During the debate over Gorsuch’s confirmation, Democrats said that his nomination deserved no better treatment than Obama’s nomination of Judge Merrick Garland had received. When Republicans noted that Gorsuch was mainstream and well qualified, they retorted that so was Garland. And it’s true that Democrats had just as much right to block Gorsuch as Republicans had to block Garland. The difference, frustrating for Democrats, was that they didn’t have the votes to do it. Several Democrats piously proclaimed that they weren’t going to try to keep Gorsuch from having a hearing. But it would have made no difference if they had tried. They didn’t have the power to deny him a hearing.
The second lesson is that quality matters. President Trump took visible pride in announcing his selection of Gorsuch. “I took the task of this nomination very seriously,” he said. He did. Trump got the most positive coverage of his presidency as a result.
Conservatives, including ones who had refused to support him in the election, applauded, because Gorsuch had an extensive track record of applying their legal principles. But many liberals, too, said that Gorsuch was an impressive nominee. Some of them even came out early in support of confirmation. Neal Katyal, who had served as acting solicitor general under President Obama, endorsed Gorsuch and introduced him during the hearings. The American Bar Association, which has clashed with other Republican presidents over judicial nominations, gave Gorsuch its highest rating. Three Democratic senators eventually came out for Gorsuch, too; all represent states that Republicans carry comfortably in presidential elections (see lesson one).
Most Democratic politicians criticized Gorsuch, but almost nobody questioned his qualifications. The main criticisms they had available to them were based either on judicial ideology or on his failure to be Merrick Garland. Gorsuch continued to be impressive, albeit cagey, in the hearings: There were no gotcha moments for the Democrats. “Nothing kept me up at night in terms of the attacks,” says former senator Kelly Ayotte, the White House’s chosen “sherpa” for Gorsuch’s meetings with senators. A different nominee — one with less polish and distinction — would have elicited worse media coverage and more-effective Democratic criticism.
“You’ve got to have a great, extraordinarily well-qualified nominee who’s going to be able to articulate his values forcefully and without fear,” concludes Leo, who took a leave from the Federalist Society to work on the confirmation.
A third lesson is that President Trump was right to step back after announcing Gorsuch. He didn’t fire off incendiary tweets about the judge’s Democratic detractors. He had chosen a strong nominee, and he let that nominee and his allies — inside the administration, in the Senate, and in conservative organizations — do the rest of the work of getting him confirmed.
Leo and Ayotte were two of those allies. Selecting Ayotte was an act of broad-mindedness by the administration: Ayotte says she was “surprised” to get the call given her criticism of Trump during the election. She is quick to give credit as well to Don McGahn, the White House counsel, for his work on the nomination.
Trump himself came back into the fray only once, and accidentally, after the nomination: when he tweeted against the “so-called judge” who had issued a national injunction against his original executive order temporarily banning people from certain Muslim-majority countries from coming to the U.S. That tweet played into the hands of Democrats who wanted to make the confirmation debate center on Trump rather than Gorsuch. In meetings with the nominee, Senator Richard Blumenthal (D., Conn.) pressed Gorsuch on whether he approved of presidential attacks on judges. Gorsuch said no, and Blumenthal went public with the exchange. Trump said nothing, and the story blew over.
A fourth lesson is that the norms surrounding Supreme Court nominations have changed in response to the heightened role that the institution has taken in our political life. This shift in norms has taken many decades. Justice Scalia was confirmed unanimously in 1986, and Justice Ruth Bader Ginsburg got 96 votes in 1993. The prevailing theory back then was that presidents deserve deference on their Supreme Court selections.
The Democrats began to abandon that norm first, in 1987, rejecting Judge Robert Bork for being too conservative. They also voted en masse against Justices Clarence Thomas in 1991 and Samuel Alito in 2006. It wasn’t until the Obama years that most Republicans acted similarly. Most of them voted against Justices Sonia Sotomayor and Elena Kagan.
This time, Democrats didn’t just oppose Gorsuch with near uniformity. They filibustered in an attempt to prevent him from getting a final vote. No minority party had ever done that before. With the Supreme Court having become as politically crucial as it has, there was no chance that a majority party was going to allow a nomination to die that way. Republicans changed the rules to make it impossible to block confirmation with a filibuster.
Some Republicans, including McConnell and Senator Lindsey Graham, still speak fondly of the earlier norms. They tout their own records of having voted for liberal justices. But the norms of deference and applying no ideological tests made sense in the context of justices who played a limited constitutional role, not of justices who act in the capacity of an effectively unreviewable legislature.
One feature of modern confirmation hearings is an uneasy hybrid of the old and new norms. It’s the expectation that justices will not disclose what they think the Constitution says about controversial topics.
The stated rationale for their silence is that nominees must avoid committing themselves to vote in particular ways in future cases should they be confirmed. That rationale is shaky: It suggests that Supreme Court litigants are mistreated whenever justices have already ruled on similar constitutional issues and thereby shown their “bias.” And this practice does not comport with the growing sense that the justices are political actors.
But it serves a partisan goal. A nominee can avoid trouble in his hearings by simply declining to answer questions. Everyone who wants to be on the Supreme Court grasped this point after watching Bork get burned for his candor. Whenever the president’s party has a majority in the Senate — the situation every time there has been a confirmation hearing over the last 25 years — most senators will go along with a strategy of discretion. Gorsuch’s hearings were the least newsworthy yet.
If Trump gets to fill another vacancy, his next nominee will almost certainly seek to beat that record.