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What Neil Gorsuch’s confirmation would mean for the US Supreme Court

The nine-judge Court is currently locked 4-4 in the ideological split between those learning left and right

Chris Stevenson
International Editor
Wednesday 22 March 2017 02:12 GMT
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Donald Trump, right, announces the nomination of Judge Neil Gorsuch
Donald Trump, right, announces the nomination of Judge Neil Gorsuch

Democrats have been targeting their questions towards Donald Trump’s Supreme Court nominee, Neil Gorsuch – aiming squarely at his independence.

There is little surprise in that, with the US President having already taken aim at more than one federal judge over the blocking of his travel ban – original and revised – to a number of Muslim-majority countries. Democrats and liberal activists have also criticised Mr Trump for promising during his campaign to nominate a judge that would help to overturn Roe v Wade, the landmark 1973 ruling on abortion rights.

During the second day of the Senate hearing on the nomination – which is due to last until Thursday – the first question Mr Gorsuch faced was whether he would have any issue ruling against Mr Trump, something Mr Gorsuch said he would have no problem with.

Next was dealing with that issue of Roe v Wade; Mr Gorsuch said that he would have “walked out the door” if Mr Trump had asked him to overturn the ruling.

For Democrats, questions over independence and leaving precedents in place are important. If they can’t block Mr Gorsuch’s appointment, which with a Republican majority in the Senate seems unlikely, they need to at least hold the conservative judge to account. The nominee is also in a tough spot, as while the Democrats involved in the hearing will push for his views, Mr Gorsuch has to be careful not to give away anything that may point towards his feelings on any issue that will come in front of the Court in future.

There are two major reasons for this. First, the nine-judge Court is currently locked 4-4 in the ideological split between those learning left and right. Mr Gorsuch will give the Supreme Court back its conservative bent following the death of Antonin Scalia more than a year ago.

This leads to the second point: Democrats are incensed that Barack Obama’s pick to fill the vacant seat – Judge Merrick Garland – was denied even a hearing as the Republican leadership gambled on the result of the election.

Senate Majority Leader Mitch McConnell has dismissed "whining" and "crocodile tears" by Democrats over Mr Garland, insisting they would have done the same in his position. Mr McConnell would need eight Democrats to get Mr Gorsuch over procedural hurdles – the only apparent way Democrats can try and block the nomination – to a final confirmation vote.

He has said he remains hopeful of getting Democratic votes, but if they aren't forthcoming he sounded prepared to move unilaterally to change Senate rules and confirm Mr Gorsuch with a simple majority – hopefully before a mid-April recess.

"If there aren't 60 votes for a nominee like Neil Gorsuch it's appropriate to ask the question is there any nominee any Republican president could make that Democrats would approve," Mr McConnell said. "Gorsuch will be confirmed I just can't tell you exactly how that will happen yet."

Trump gives strange handshake to Neil Gorsuch

Both parties are intent on pushing their agenda, not only because a judge will sit for life, changing the make-up of the Court for decades, but also because of the number of important issues that are due before the highest court in the land. The Court's ideological leaning could help determine the outcome of cases involving the death penalty, abortion, gun control, environmental regulations, transgender rights, voting rights, immigration, religious liberty, presidential powers and more. There is also the small matter of President Trump’s travel ban – which he has promised to pursue up to the Supreme Court if required.

And this may not be the last time we see a nomination by Mr Trump. With a number of other judges near 80 years old – or beyond – the current President might possibly be able to dramatically alter the make-up of the Supreme Court before he leaves office.

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