Senate has the votes to confirm Neil Gorsuch to the Supreme Court

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WASHINGTON — The Senate has the votes to confirm Neil Gorsuch to the Supreme Court, and voting has begun.

Vice President Mike Pence is expected to preside as all 52 Republicans and three moderate Democrats from states that Trump won — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana — cast their votes for the Supreme Court nominee.

Democrats denounced Republicans’ use of what both sides dubbed the “nuclear option” to put Gorsuch on the court, calling it an epic power grab that would further corrode politics in Congress, the courts and the United States. Many Republicans bemoaned reaching that point, too, but they blamed Democrats for pushing them to it.

“We will sadly point to today as a turning point in the history of the Senate and the Supreme Court,” Democratic Minority Leader Chuck Schumer of New York declared on the Senate floor Thursday.

“This is going to be a chapter, a monumental event in the history of the Senate, not for the better but for the worse,” warned Sen. Lindsey Graham of South Carolina, a senior Republican.

The final confirmation vote on Gorsuch is expected Friday, and he should be sworn in soon to hear the final cases of the term. He was nominated by Trump shortly after the January inauguration.

The Senate change, affecting how many votes a nominee needs for confirmation, will apply to all future Supreme Court candidates, likely ensuring more ideological justices chosen with no need for consultation with the minority party. Trump himself predicted to reporters aboard Air Force One that “there could be as many as four” Supreme Court vacancies for him to fill during his administration.

“In fact, under a certain scenario, there could even be more than that,” Trump said. There is no way to know how many there will be, if any, but several justices are quite elderly.

Even as they united in indignation, lawmakers of both parties, pulled by fierce political forces from left and right, were unwilling to stop the confirmation rules change.

The maneuvering played out in a tense Senate chamber with most members in their seats, a rare and theatrical occurrence.

First Democrats tried to mount a filibuster in an effort to block Gorsuch by denying him the 60 votes needed to advance to a final vote. That was successful only briefly, as Gorsuch fell five votes short. Then Majority Leader Mitch McConnell, R-Ky., raised a point of order, suggesting that Supreme Court nominees should not be subjected to a 60-vote threshold but instead a simple majority in the 100-member Senate.

McConnell was overruled, but he appealed the ruling. And on that he prevailed on a 52-48 party-line vote. The 60-vote filibuster requirement on Supreme Court nominees was effectively gone, and with it the last vestige of bipartisanship on presidential nominees in an increasingly polarized Senate.

The developments were accompanied by unusually bitter accusations and counter-accusations. And yet in many ways the showdown had been pre-ordained, the final chapter in years of partisan warfare over judicial nominees.

In 2005, with the Senate under GOP control, Republicans prepared to utilize the “nuclear option” to remove the filibuster for lower-court nominees. A bipartisan deal at the time headed off that change. But then in 2013, with Democrats in charge and Republicans blocking President Barack Obama’s nominees, the Democrats did take the step, removing the filibuster for all presidential appointments except the Supreme Court.

McConnell accused Democrats of forcing his hand by trying to filibuster a highly qualified nominee in Gorsuch, 49, a 10-year veteran of the 10th U.S. Circuit Court of Appeals in Denver with a consistently conservative record.

But Democrats were unable to pull back from the brink, partly because they remain livid over McConnell’s decision last year to block Obama’s Supreme Court nominee, Judge Merrick Garland, who was denied even a hearing after the death of Justice Antonin Scalia in February 2016. Instead McConnell kept Scalia’s seat open, a calculation that is now paying off for Republicans and Trump.

Even as Graham and other senior Republicans lamented the voting change, McConnell and some allies argued that all they were doing was returning to a time, not long ago, when filibusters of judicial nominees were unusual, and it was virtually unheard-of to try to block a Supreme Court nominee in that fashion.

Once Gorsuch is confirmed, it won’t be long before he starts revealing what he really thinks about a range of hot topics he repeatedly sidestepped during his confirmation hearing.

In less than two weeks, the justices will take up a Missouri church’s claim that the state is stepping on its religious freedom. It’s a case about Missouri’s ban on public money going to religious institutions and it carries with it potential implications for vouchers to attend private, religious schools.

Other cases the court could soon decide to hear involve gun rights, voting rights and a Colorado baker’s refusal to design a cake for a same-sex couple’s wedding. Some of those cases may come up April 13, which could be Gorsuch’s first private conference — where justices decide whether to hear a case. It takes four votes to do so, though the court does not generally announce each justice’s decision.

Arkansas’ intention to execute up to eight men over 10 days beginning April 17 also could land at the court in the form of last-minute pleas for a reprieve. By late spring or early summer, the court might be asked to consider President Donald Trump’s proposed ban on visitors from six majority Muslim countries.

Also potentially awaiting Gorsuch’s decisive vote are six cases that were argued before the end of 2016 and remain unresolved. If the justices are divided 4 to 4 in any of them, the most likely route to breaking a ties would be to schedule a new round of arguments, with Gorsuch participating.

Included in that batch are lawsuits involving racial discrimination in housing and political redistricting, and the rights of detained immigrants.

Both sides in the bruising battle over Gorsuch’s nomination think they have a good sense of how he will come down on the big issues of the day, from his record as an appellate judge in Denver since 2006 and his recommendation by conservative groups. They expect Gorsuch to, in effect, restore the working conservative majority that was in place when Justice Antonin Scalia was alive. Gorsuch will take the seat of the conservative icon who died in February 2016.

While that remains uncertain, it’s safer to say Gorsuch should know his way around the venerable building.

Like Chief Justice John Roberts and Justices Stephen Breyer and Elena Kagan, Gorsuch once served as a law clerk at the court, so the building’s layout and its idiosyncratic ways will be somewhat familiar to him. Samuel Alito reported he sometimes had trouble finding his way around as a new justice, and the challenge was all the greater because the court was going through a major renovation at the time.

Alito had argued cases in front of the justices, but he said it didn’t prepare him for the building’s confusing layout or the view from the bench.

“It was unreal. It was sort of surreal. I’ve had many times during those periods where I’ve had to pinch myself to say, ‘Yeah, you’re really here. You’re on the Supreme Court. This is really happening,’” Alito told the Newark Star-Ledger in an interview in July 2006, a half of a year after joining the court.

Further easing Gorsuch’s transition is that his former boss, Justice Anthony Kennedy, remains on the court. It’s the first time a justice will serve alongside his former clerk.
The 49-year-old Coloradan also will be the first member of Generation X, the cohort of Americans following the post-World War II baby boom, to reach the court. He’ll be the youngest justice. Ruth Bader Ginsburg, at 84, is the oldest.

As the newest justice, Gorsuch will also take over two duties performed by Kagan since 2010. When the justices are alone in their conference room and someone knocks on the door, it is the junior justice who answers. He also will become the newest member of the court’s cafeteria committee, where replacing Kagan will be no mean feat. Her tenure brought with it a frozen yogurt machine.


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