Welcome back to Legal Geek. This week, we follow up on the news of President Trump's first selection to the Supreme Court with an explanation of how the confirmation process works, and how it could change.
https://archive.org/details/LegalGeekEp95
A couple weeks ago, President Trump announced during prime time television his first selection to be nominated to fill Antonin Scalia's seat on the Supreme Court, which has been vacant since Scalia's death early in 2016. This was one of the truly hot topic items in the past presidential race, considering the Senate opposition and lack of confirmation of Obama's prior nominee to fill the seat, Merrick Garland.
Judge Gorsuch is one of the list of 20 or so potential nominees Trump shared as a presidential candidate, and thus, the nomination remains in line with his initial goals to try and keep his campaign promises to voters. He currently serves on the 10th Circuit Court of Appeals in Denver, and idealogically he would likely fall between the stalwart conservative Justice Thomas and the more recent GOP appointees Chief Justice Roberts and Justice Alito. In other words, fairly close on the spectrum to the Justice he would be replacing.
In view of this similarity to the Justice being replaced and the seemingly pristine resume of judicial experience that Gorsuch brings to the table, it is unclear how hard the Democrats will fight this nomination. Since I didn't cover this in detail for the Garland nomination, let's discuss how confirmation works for the Supreme Court and some items to watch this time.
Confirmation for Supreme Court justices is very similar to the long stream of Cabinet officers and other executive appointees going through the process now for the Trump administration. First, Gorsuch is currently meeting with members of the Senate judiciary committee, who will almost certainly approve the nomination for further consideration. Then, the Senate holds hearings and grills a prospective justice on all matters of judicial philosophy and substantive policy. Then the issue must go to a vote, and a simple majority of 51 senators can cause confirmation.
However, Supreme Court appointments are subject to filibuster, delay by the opposing party. To stop a filibuster, the Senate needs to vote for cloture, which is defined as a forced immediate vote over any filibuster delay tactics. Cloture requires 60 Senate votes out of 100. The republican party holds 52 seats, so getting to the necessary 60 votes to block a filibuster may be quite difficult. The question becomes will a lengthy filibuster occur from the Democrats?
For reference, in the last 70 years we've had 34 nominees to the Court, and 30 of those were confirmed. The average wait time before a vote on a nominee has risen over time, and now sits at about 75 to 100 days for most of those currently serving on the bench.(*) Thus, regardless of opposition or a filibuster, you should expect the Senate's Gorsuch vote to happen no earlier than late April or early May. Of course, the Merrick Garland lack of vote for 293 days last year is a huge recent outlier that could embolden Democrats to try the same tactics here.
If that happens, the Republicans could change the rules on filibusters and cloture for Supreme Court nominees, removing the need for 60 Senators in the so-called "nuclear option." This nuclear option has been floated by both parties since the second Bush administration, and it was partially enacted by the Democrats in 2013 during a series of reforms to filibuster rules in the last decade. To this end, the Democrats changed the rules then to specifically allow cloture and block filibusters with 51 votes only for executive branch nominees and lower court judge nominees. Although Supreme Court nominees were left out at that time, the current events could expand that nuclear option to remove the right to filibuster these nominees as well. In other words, a different party in power, but the same trend against filibusters remains.
The Bottom Line is, regardless of Democratic opposition, the republican majority has the tools necessary to force a vote on Gorsuch, and likely in about 75 to 100 days from his nomination by President Trump. That will allow the next Supreme Court term beginning in October to avoid the awkwardness that has been an evenly split 8 Justice Court over the 2015 and 2016 terms, and that should make this judicial branch of the federal government work well once again.
-----------------------------------
(*) Source of information - SCOTUSBlog (article by Samuel P. Morse of empiricalscotus.com).
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
No comments:
Post a Comment