Ben Roback is a Senior Account Executive at Cicero Group and a member of the US Embassy’s Young Leader’s UK programme.
After two truly frenzied weeks of the unprecedented Presidency, Washington has returned to a state of reassuring consistency. All it took to bring things back to normal was a hyper-partisan fight over a Supreme Court nominee.
President Trump has announced Neil Gorsuch as his nominee for the Supreme Court seat left vacant since the death of Antonin Scalia one year ago. Judge Gorsuch, 49, made his name on the 10th circuit court of appeals in Denver, Colorado. He is an ‘originalist’, meaning he seeks to interpret the Constitution with the understanding of those who wrote it not as it might be interpreted for modern America. The appointment thus earned rave reviews across the American conservative community.
The nomination of a Supreme Court Justice cannot have taken the Democrats by surprise. After all, the refusal of the Republican majority in the previous Congress to grant a hearing to President Obama’s nominee for the vacant seat, Merrick Garland, had guaranteed the pick to the new President. That was a huge strategic gamble, having watched their candidate spend much of the election campaign trail Hillary Clinton in the polls.
Democrats in the House and Senate have struggled for a unified message around which to rally. Senator Chuck Schumer (D) must balance two major competing interests in navigating his party through the murky waters of a Supreme Court nomination that should, in theory, focus on legal qualification and not political gamesmanship. On one hand, the Democratic base, incensed by every action President Trump has taken, is desperate for any opportunity to frustrate the President’s agenda and will encourage a filibuster. On the other hand, House and Senate Democrats in Republican states on the electoral map in 2018 must consider the optics of opposing an established conservative nominee around whom the GOP has rallied.
Preparing to go nuclear
After consideration by the Senate Judiciary Committee, the Republican majority in the Senate will bring the nomination to a vote. With the ball squarely in the court of the opposition, Schumer could decide to filibuster the vote. Republicans would need 60 votes to end the filibuster and for cloture to be enacted. At that point, the Republican leadership in the Senate faces a monumental decision – leave the seat unfilled, or invoke the “nuclear option”. Extending precedent set in 2013 by former Senator Harry Reid (D) in his tenure as Senate Majority Leader, Republicans could force a simple yes/no vote which would only require a simple majority for approval. With a 52-46 majority, and with Vice President Mike Pence breaking the vote in the event of a tie, the expectation would then be a path to victory for Gorsuch. It is a useful reminder that no party is in perpetual power, and the days of returning the opposition are never too far away.
The nuclear option, whilst providing an easy way out of a political problem for the Republicans, may be worth holding on to for the time being. Judge Gorsuch has been seen to almost perfectly fit the mould vacated by Scalia, meaning his appointment only reaffirms the balance of the Court – if confirmed, the decisive vote on the court will be retained by Justice Anthony Kennedy, a moderate conservative. Should President Trump be afforded another Supreme Court pick owing to the death or retirement of one of the current eight Justices, the appointment of another conservative Justice would truly change the balance of the court, shifting it from a 5-4 split to a 6-3 bench in favour of conservatives.
What it all means for President Trump
If approved, at age 49 Gorsuch could be a conservative stalwart on the bench for decades to come, acting as a lasting pillar of Trump’s legacy. C Crucially though, Gorsuch’s nomination is an important concession to the wing of the traditional conservative base that voted for Trump with some reluctance, in lieu of his persona during the campaign and patchy record on core conservative issues. Had Trump appointed a more moderate judge, that sector of the base might have abandoned support for the GOP so long as he leads it. For many in the Republican Party who were unsure about Trump, the nomination of Gorsuch is validation for their begrudging support. As is so often the case in Washington, the fight now moves on to a bitterly partisan Senate.
Ones to watch
Ten red state Democrats – Democratic Senators in Republican states – face the ballot box in November 2018. Not wanting to turn their backs on the Democratic base who voted them into office, they must consider why their states voted for a Republican in the presidential election only two years previously. In key votes on the Senate floor, such as Cabinet nominees and the Supreme Court nomination, the ten are those most under pressure to break for Trump: Heidi Heitkamp (ND), Joe Manchin (WV), Tammy Baldwin (WI), Jon Tester (MT), Claire McKaskill (MO), Bill Nelson (FL), Joe Donnelly (IA), Debbie Stabenow (MI), Sherrod Brown (OH), Bob Casey (PA). How that group of Democrats respond to the Trump presidency will act as a crucial indicator for how the opposition is best placed to deal with the new White House agenda in truly competitive states. In many respects, their reactions are more worthy of political analysis than protests in metropolitan cities on America’s coasts which voted Democrat up and down the ballot in their masses in 2016 and don’t serve as a bellwether for swing states in middle America.