On April 6, Senate confirmed Neil Gorsuch to the Supreme Court. This comes on the heels of a heated battle on the Senate floor, which capped four months of meetings, hearings, and reviews. Democrats, led by Senate Minority Leader, Chuck E. Schumer, attempted to filibuster Gorsuch’s nomination by denying the 60 votes needed to invoke cloture and end the filibuster. However, the filibuster failed and Republicans employed the nuclear option to confirm Gorsuch by a simple majority vote in Senate.
The nuclear option is a procedural tactic used to erase Senate rules, and was first used by Harry M. Reid to block filibusters on President Obama’s executive and judicial branch nominees. After a series of procedural actions, the majority asks for a vote to determine the constitutionality of a rule. If a simple majority of the Senate votes to do away with the rule, the rule is eliminated. This procedural change eradicated the Supreme Court filibuster, opening up every federal appointment to confirmation by a simple majority.
According to the New York Times, “both parties have warned of sweeping effects on the court itself, predicting the elevation of more ideologically extreme judges now that only a majority is required for confirmation.” Judges will no longer have to be moderate enough to garner 60 votes required for cloture in Senate.
Neil Gorsuch is a fairly ideological jurist. He is, however, no more extreme than Antonin Scalia, who was confirmed 98-0 by Senate in 1986. Gorsuch is a graduate of Columbia, Harvard, and Oxford. He has served as a clerk to two Supreme Court justices and on the Tenth Circuit Court of Appeals.
Gorsuch has immediately taken his seat on the bench and is set to rule soon on a joint separation of church & state and religious freedom case. The case, which commenced in Missouri, concerns government’s assistance to religious institutions. The Missouri Constitution explicitly prohibits the use of public funds for religious institutions, and the Trinity Lutheran Church of Columbia is suing the state, arguing that this prohibition violates their Constitutional right to freedom of religion.
Gorsuch will provide what could be a critical swing vote in this case. The Washington Post quoted Michael Bindas at the Institute of Justice, who said that the case “has the potential to remove one of the last legal clouds hanging over school choice.” Considering that school vouchers are one of President Trump’s priorities, this case could provide a good litmus test for Gorsuch’s independence.
Neil Gorsuch’s confirmation has restored the conservative tilt of the nation’s highest court. His confirmation has also irrevocably changed both the legislative and judicial branches of the federal government. The nuclear option will make judges more extreme and legislative oversight less rigorous.