A “view” from the Rose Garden: Neil Gorsuch takes the judicial oath

Despite our best efforts to explain the two oaths a new justice must take and the traditions surrounding the administration of the oaths, there evidently is still some confusion going around. When I arrive at the White House press room this morning in advance of Neil Gorsuch’s Rose Garden ceremony, I overhear a correspondent talking […]

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Despite our best efforts to explain the two oaths a new justice must take and the traditions surrounding the administration of the oaths, there evidently is still some confusion going around.

When I arrive at the White House press room this morning in advance of Neil Gorsuch’s Rose Garden ceremony, I overhear a correspondent talking on the phone to his editor about the “ceremonial re-enactment” of the oath about to take place.

When he hangs up, I gently offer a clarification: Gorsuch took his constitutional oath, which was administered by Chief Justice John Roberts Jr. in the justices’ conference room at the Supreme Court, at 9 this morning. And at 11 a.m., here at the White House, Justice Anthony Kennedy will administer the judicial oath to Gorsuch, which is just as necessary to become a full-fledged justice.

Photo by Mark Walsh

Or so we think. There will be bit more confusion a little later on in the Rose Garden, where the sun is shining and the temperature is in the 70s. It is reminiscent of March 16, 2016, when President Barack Obama announced Chief Judge Merrick Garland as his nominee to succeed the late Justice Antonin Scalia.

At the back of the garden today, a U.S. Marine Corps string ensemble is providing an elegant soundtrack to the event.

The audience is filled with many of the Gorsuch supporters who were in the East Room of the White House on Jan. 30 when President Donald Trump announced Gorsuch as his nominee. Several of those were also a frequent presence at Gorsuch’s confirmation hearing.

Some special guests will be singled out by Trump or Gorsuch, but among the other notables is Leonard Leo, who is on leave from the Federalist Society to work on the Gorsuch nomination and is the subject of a Jeffrey Toobin profile this week in The New Yorker. Leo is in the third row, seated behind the spouses of the justices.

Attorney General Jeff Sessions is here, near the front. A bit farther back in the crowd is Rachel Brand, a former Kennedy law clerk whose nomination to be associate attorney general has been forwarded to the full Senate. Greg Garre, a solicitor general under President George W. Bush is here, as is C. Boyden Gray, a former White House counsel under President George H. W. Bush.

A bit farther back, in the last row of guests before the two rows of seats set aside for the press, are two prominent progressive-leaning lawyers who backed Gorsuch’s nomination. David Frederick, a Supreme Court litigator who wrote an op-ed in The Washington Post in March supporting the nomination (as virtually every Republican member of the Senate Judiciary Committee pointed out during the hearing), is here. And in the same row is Neal Katyal, the former acting solicitor general under Obama who wrote an op-ed in support of Gorsuch in The New York Times and testified on the opening day of the hearing.

Just before the ceremony begins, the seven members of the court (except for Kennedy, who will enter with Trump and Gorsuch) arrive and take seats in the front row. They evidently do not agree with retired Justice John Paul Stevens, who did not think it appropriate for sitting justices to attend White House swearing-in ceremonies, though he relented when he was called upon to swear in Roberts as chief justice in 2005. Already seated near the justices’ spouses are the court’s chief officers: Marshal Pam Talkin, Clerk Scott Harris, and Jeffrey Minear, the counselor to the chief justice.

A voice over the loudspeaker announces Trump, Kennedy and “Justice Gorsuch.” Is Gorsuch a justice by virtue of having taken just the first of his two oaths?

The late Justice Byron White, for whom Gorsuch also served as a law clerk when White had just retired in 1993, would have disagreed. (As we noted last week, White made a point, when presiding over Clarence Thomas’s constitutional oath in a 1991 White House ceremony, to say that only when Thomas took his judicial oath, scheduled at a later date, would he be a justice.)

Trump welcomes the justices. He welcomes Senators Cory Gardner of Colorado, who helped introduce Gorsuch at his confirmation hearing; Mike Lee of Utah; and Mike Crapo of Idaho. All are Republican, and the latter two serve on the Judiciary Committee. The president also welcomes Judiciary Committee Chairman Charles Grassley (R-Iowa).

 

Photo by Mark Walsh

Trump notes that Senate Majority Leader Mitch McConnell (R-Ky.), could not be here today, but he thanks him “for all that he did to make this achievement possible.”

“I’ve always heard that the most important thing that a president of the United States does is appoint people, hopefully great people like this appointment, to the United States Supreme Court, and I can say this is a great honor,” the president said, reading from his teleprompter. But then he ad-libs, “And I got it done in the first 100 days. You think that’s easy?”

Trump asks Maureen Scalia, Scalia’s widow, to stand, while he pays testament to her and to Scalia. She is seated in the front row, between Justice Elena Kagan and Scalia’s son Eugene.

“In Justice Gorsuch,” Trump says, the American people “see a man of great and unquestioned integrity. They see a man of unmatched qualifications. And most importantly, they see a man who is deeply faithful to the Constitution of the United States.”

Trump heaps praise on Kennedy, and says “it is a very special moment” for Kennedy to swear in Gorsuch and for the first time have a justice serve with one of his former law clerks.

With an invitation from Trump to say a few words, Kennedy thanks the president and says, “Mr. Chief Justice, Justice Gorsuch, and my fellow adherents to the idea and the reality of the rule of law,” before explaining the origin of the constitutional and judicial oaths.

“Both of these oaths remind us that we as a people are bound together,” Kennedy says. “We as a people find our self-definition, our respect, our heritage, and our destiny in the Constitution.”

“And so, Justice Gorsuch, there is one oath remaining for you to take, the judicial oath, before you may receive and accept your commission” from the president, Kennedy says.

Kennedy and Gorsuch move a few steps away from the lectern, while a military aide escorts Louise Gorsuch to the riser. She will hold the family Bible. As Kennedy begins to recite the oath, the audience is disappointed that the sound is not amplified in the Rose Garden. (On TV, the oath is audible, but only over the clacking of automatic shutters in the press photographers’ cameras.)

Gorsuch thanks Trump and Vice President Mike Pence, who is in the first row. He says he can’t thank everyone he should, but he singles out White House Counsel Don McGahn and Mark Paoletta, the vice president’s counsel. (We may have missed him, but we don’t see Greg Katsas, the deputy White House counsel, here today. McGahn and Katsas attended much of Gorsuch’s confirmation hearing.)

He thanks Kelly Ayotte, the former U.S. senator from New Hampshire who was his chief “sherpa” during the confirmation process. He thanks his former law clerks, his now-former colleagues on the U.S. Court of Appeals for the 10th Circuit, and his new colleagues on the Supreme Court.

He has so many thank yous, his remarks are starting to sound like an Oscars speech. But we don’t think the Marine ensemble will play him off the stage.

He thanks his wife, who is now standing behind him next to the president, and his daughters, “Emma and Bindy” (Belinda), who are making their first public appearance related to the confirmation.

“To the American people,” he says, “I am humbled by the trust placed in me today. I will never forget that to whom much is given, much will be expected. I promise you that I will do all my powers permit to be a faithful servant of the Constitution and laws of this great nation.”

With that, Gorsuch has a handshake for the president, a hug for Kennedy and a shoulder rub for his wife.

The Associated Press will soon transmit photos with captions that refer to the ceremony as a “re-enactment” of his first oath. The only real re-enactment will come sometime soon when the Supreme Court holds an investiture ceremony in the courtroom, during which Gorsuch will repeat the judicial oath.

But we can now refer to him, without any doubt, as Justice Gorsuch.

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Judge Neil Gorsuch takes constitutional oath at Supreme Court

        Photos courtesy of Franz Jantzen, Collection of the Supreme Court of the United States

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Chief Justice John Roberts administers the constitutional oath to Judge Neil Gorsuch in a private ceremony attended by the justices of the Supreme Court and members of the Gorsuch family.

 

Judge Neil Gorsuch signs the constitutional oath.

 

Chief Justice John Roberts and Judge Neil Gorsuch

 

Justice Anthony Kennedy and Judge Neil Gorsuch

 

Photos courtesy of Franz Jantzen, Collection of the Supreme Court of the United States

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Afternoon round-up: Senate confirms Gorsuch

Afternoon round-up: Senate confirms GorsuchBy a vote of 54-45, the Senate today confirmed Judge Neil Gorsuch to be the 113th justice of the U.S. Supreme Court. Amy Howe reports on the confirmation for this blog, and Mark Walsh covers Gorsuch’s upcoming oaths and ceremonies. Additional early coverage comes Nina Totenberg of NPR, Ed O’Keefe and Robert Barnes of The […]

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Afternoon round-up: Senate confirms Gorsuch

By a vote of 54-45, the Senate today confirmed Judge Neil Gorsuch to be the 113th justice of the U.S. Supreme Court. Amy Howe reports on the confirmation for this blog, and Mark Walsh covers Gorsuch’s upcoming oaths and ceremonies.

Additional early coverage comes Nina Totenberg of NPR, Ed O’Keefe and Robert Barnes of The Washington Post, Adam Liptak and Matt Flegenheimer of The New York Times, Lawrence Hurley and Andrew Chung of Reuters, Laura Litvan of Bloomberg Politics, Leigh Ann Caldwell of NBC News, Alexander Bolton with two posts for The Hill, Chris Geidner of BuzzFeed News, Elana Schor of Politico, Debra Cassens Weiss of the ABA Journal, Russell Berman of The Atlantic, Ian Mason of Brietbart, Tierney Sneed of Talking Points Memo, Daniella Diaz and Amanda Wills of CNN Politics, Judson Berger of Fox News, Gabrielle Levy of U.S. News & World Report, Ryan Lovelace of the Washington Examiner, Caleb Ecarma of The Daily Signal and Lisa Mascaro and David Savage of the Los Angeles Times.

Additional early commentary comes from Ross Barkan for The Guardian, Jonathan Adler for The Volokh Conspiracy at The Washington Post, Rick Hasen for his Election Law Blog, Ilya Shapiro and Roger Pilon for Cato at Liberty, Ramesh Ponnuru for National Review, Dahlia Lithwick and Mark Joseph Stern for Slate, Kent Scheidegger for his Crime and Consequences blog, Ian Millhiser with two posts for Think Progress, Andrew Prokop for Vox, Charles Pierce for Esquire, Ivan Eland for The Hill and E.J. Dionne Jr. for the San Francisco Chronicle.

All of the blog’s coverage of the Gorsuch nomination is available at this link.

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With confirmation, oaths and ceremonies to come

With confirmation, oaths and ceremonies to comeSo, the Senate has confirmed Neil Gorsuch to the Supreme Court. What happens now? Gorsuch must take two oaths for the position of associate justice, the “constitutional oath” administered to all federal officials under Article VI of the Constitution and the “judicial oath” required under the Judiciary Act of 1789. How and where these oaths […]

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With confirmation, oaths and ceremonies to come

So, the Senate has confirmed Neil Gorsuch to the Supreme Court. What happens now?

Gorsuch must take two oaths for the position of associate justice, the “constitutional oath” administered to all federal officials under Article VI of the Constitution and the “judicial oath” required under the Judiciary Act of 1789.

How and where these oaths have been administered to new justices, and even how many times, has varied widely in recent years. Six of the eight current members of the court participated in White House events at which they took the constitutional oath, even if that was purely for ceremonial reasons.

All eight, as most of their predecessors had, separately participated in the court’s investiture ceremony, which I’ll describe in further detail below, in which they took the judicial oath (again, sometimes just for ceremony) before taking their seats on the Supreme Court bench for the first time. For various reasons, most current justices first took one or both of their oaths privately.

Minutes after the Senate confirmation vote today, the Supreme Court’s public information office issued a release announcing that Chief Justice John Roberts Jr. will administer the constitutional oath to Gorsuch at 9 a.m. on Monday, April 10, in a private ceremony in the justices’ conference room. Later that morning, Justice Anthony Kennedy, whom Gorsuch served as a law clerk, will administer the judicial oath in a public ceremony at the White House.

President Barack Obama held no White House oath ceremonies for his two appointees, Sonia Sotomayor and Elena Kagan, but he attended their investitures at the court. Before Obama, every president from Ronald Reagan to George W. Bush held such events at the White House, although Reagan did not hold one for his first appointee, Sandra Day O’Connor.

(According to a section of the court’s website about oath ceremonies, President Franklin D. Roosevelt held White House ceremonies for three of his Supreme Court appointees. The practice fell into disuse until Reagan revived it with a White House ceremony in 1986 for the elevation of William Rehnquist to chief justice and the appointment of Antonin Scalia as a justice.)

A rush to take the oaths

Among current members of the court, Justice Anthony Kennedy may have set a record by taking his oaths four times in one day.

Joining the court on Feb. 18, 1988, after the extended vacancy following the 1987 retirement of Justice Lewis Powell Jr. and the defeat later that year of Robert Bork, Kennedy took the constitutional and judicial oaths privately in the justices’ conference room, followed by his investiture ceremony in the courtroom, and then a ceremony in the East Room of the White House with Reagan later that day.

Justice Clarence Thomas took his constitutional oath on Oct. 18, 1991, on the South Lawn of the White House. Then-Chief Justice William Rehnquist’s wife, Nathalie, had died of cancer the day before. Some reports say the court had asked the White House to delay the ceremony, but it went on because of an eagerness to get Thomas sworn in after his bruising confirmation battle.

There were also reports that White House lawyers had suggested Thomas would be a member of the court after taking the constitutional oath, notwithstanding his scheduled Supreme Court investiture on Nov. 1. But Justice Byron White, who administered the oath to Thomas at the ceremony, seemed to throw cold water on that.

“Judge Thomas, this will not be the first time you’ve taken an oath that is ordinarily given to federal officers,” White said before administering the constitutional oath. “And when at 10:00 on November 1st, you take the judicial oath that is required by statute, you will become the 106th justice to sit on the Supreme Court, and we look forward to that day.”

A few days after that ceremony, Thomas learned that his clerks and staff members could not move into the Supreme Court building until he had taken the judicial oath. So Thomas, reluctant to bother the grieving Rehnquist, checked with the chief justice’s administrative assistant, who told him to show up at the court building on Oct. 23.

Thomas recalled in his 2007 memoir, “My Grandfather’s Son,” that Rehnquist met them in the justices’ conference room promptly at 11 a.m. Thomas had been told he could invite his wife, Virginia, and his chief proponent, Sen. John C. Danforth (R-Mo). After the oath, the chief justice “shook hands with each of us, congratulated me, and left,” Thomas wrote.

Justices Ruth Bader Ginsburg and Stephen Breyer were each confirmed in August, in 1993 and 1994, respectively. They both had White House ceremonies in that month, followed by Supreme Court investitures closer to the start of the court term. (Breyer had taken both oaths at Rehnquist’s summer home in Vermont on Aug. 3, 1994, more than a week before his White House event, which featured first lady Hillary Clinton and Vice President Al Gore filling in for an absent President Bill Clinton, and Justice Antonin Scalia ceremonially administering the constitutional oath.)

For Chief Justice John Roberts, who was confirmed just weeks after Rehnquist’s death, then-Justice John Paul Stevens came to the White House to deliver both oaths. This was significant because Stevens held a strong view that newly confirmed justices should be sworn in only at the Supreme Court, out of respect for the separation of powers among the executive, legislative and judicial branches.

Stevens had considered Reagan’s comments at Kennedy’s 1988 White House ceremony — about the new justice being someone who would follow the law rather than make it — to be “both offensive an inappropriate,” he wrote in his 2011 book, “Five Chiefs.” Stevens decided he would not attend White House swearing-in ceremonies in the future.

“I was tempted to adhere to that lonely position when asked to come to the White House to administer the oath to John Roberts but concluded that a refusal to participate would have been widely misinterpreted as manifesting disapproval of his appointment,” Stevens wrote in his book.

Justice Samuel Alito took both of his oaths privately just hours after his confirmation on Jan. 31, 2006. That allowed him to join some of his new colleagues in attending Bush’s State of the Union address that evening.

“Last night, he looked pretty good in that black robe sitting there,” Bush said about Alito at the White House ceremony the next day, when Alito took the constitutional oath for a second time.

Justices Sonia Sotomayor and Elena Kagan, who, like Ginsburg and Breyer, were confirmed during the summer, each had both the constitutional and judicial oaths administered at the court within days of their Senate votes. Their constitutional oaths were administered by Roberts in the justices’ conference room, and the chief justice performed the judicial oath for each in short televised ceremonies held in one of the court’s larger conference rooms. Roberts said at the time that being sworn in then would allow each “to begin work right away,” before their investitures, which would be held closer to the start of the court term in October.

A tradition-bound script for investitures

Although the White House and the impromptu Supreme Court oath ceremonies have followed a range of formats and scripts since the Reagan era, the court’s investiture proceeding is much more bound in tradition.

At this short ceremony, which is often though not always held on a day when the court is not otherwise sitting, the courtroom is filled with VIP guests of the justices and the incoming member, often including retired members of the court, the attorney general, and the president.

President Harry Truman was the first to take part in an investiture at the court when he attended the ceremony for his first appointee, Harold Burton, in 1945, according to the court’s website. Every president since then has attended the investiture of at least one of his nominees, except President George H.W. Bush, who skipped the court ceremonies for Thomas and Justice David Souter, and President Jimmy Carter, who never got an opportunity to appoint a justice.

During the investiture, the incoming justice is escorted to a historic chair that was used by Chief Justice John Marshall in the early 19th century. The chair is placed in the bar section near the desk of the clerk of the court. The guest of honor sits as the attorney general presents the new justice’s commission and the clerk reads the commission.

The new justice is then escorted to the bench and the chief justice administers the judicial oath (whether for the first time or again for this ceremony). If tradition holds, Roberts will then welcome Gorsuch by wishing him “a long and happy career in our common calling.”

Gorsuch will then take his seat at the far right of the bench (as viewed from the perspective of spectators).

Writing in her 2013 memoir, “My Beloved World,” Sotomayor described her feelings as the investiture unfolded before her and the many family members and friends who were present: “I felt as if an electric current were coursing through me, and my whole life, collapsing upon that moment, could be read in the faces of those most dear to me who filled that beautiful room.”

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SCOTUS for law students: The Senate votes

SCOTUS for law students: The Senate votesThe showdown over the nomination of Judge Neil Gorsuch to the Supreme Court plays out in the full Senate this week, and the scene may be a dramatic one. Both Democratic and Republican leaders have vowed an all-out fight, highlighted by a Democratic threat to keep the nomination from getting to a vote and a […]

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SCOTUS for law students: The Senate votes

The showdown over the nomination of Judge Neil Gorsuch to the Supreme Court plays out in the full Senate this week, and the scene may be a dramatic one.

Both Democratic and Republican leaders have vowed an all-out fight, highlighted by a Democratic threat to keep the nomination from getting to a vote and a Republican vow to change historic Senate rules, if necessary, to see that Gorsuch is approved.

Republican leaders have accused Democratic senators of rank partisanship in their effort to block or defeat the nomination of Gorsuch by President Donald Trump. The nominee, Republican senators say, is highly qualified in experience, education and intellect to take the place of Justice Antonin Scalia, who died on February 13, 2016. Gorsuch shares many of Scalia’s views, they argue, including a faithful commitment to the original meaning of the Constitution.

Democrats say the Republicans stole the seat by refusing even to consider President Barack Obama’s nomination of Judge Merrick Garland, which expired on January 3. Garland, they say, was at least as well qualified in every respect as Gorsuch. Moreover, Democrats say, Gorsuch is too conservative, committed to curtailing the regulatory power of federal agencies and narrowing the Supreme Court’s protection of civil rights and liberties.

How will it all play out? There are enough variables in the process to create suspense about the answer to that question. Will the Democrats try to block a vote with a filibuster? If they do, will Republicans change the rules of the Senate to allow a final vote on the Gorsuch nomination?

The final stages of the process began on Monday when the Senate Judiciary Committee voted to approve the nomination, sending it to the Senate floor on a straight party-line vote, with 11 Republicans supporting Gorsuch and nine Democrats voting to oppose him.

What happens next is a form of high political theater, with part of the story foreordained by Senate rules and part improvised on the Senate floor and in back rooms near the ornate Senate chamber.

Senate Minority Leader Chuck Schumer (D-N.Y.) has vowed that Democrats will filibuster the nomination, a procedure that involves senators on the Senate floor objecting to any vote on the nomination. If that happens, current Senate rules require 60 votes to stop the filibuster through the process known as invoking cloture.

Schumer has insisted that it has become the norm for Supreme Court nominees to get at least 60 votes, citing the confirmations of Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor and Elena Kagan. Roberts (78-22), Sotomayor (68-31) and Kagan (63-37) all received more than 60 votes. Alito was confirmed by a 58-42 vote, but the Senate had earlier voted to invoke cloture by a vote of 72-25. Republican senators say there is no rule that Supreme Court nominees need 60 votes and that Schumer’s contention is simply an attempt to justify blocking Gorsuch.

Because Democrats have been clear about their intent to filibuster, Senate Majority Leader Mitch McConnell (R-Ky.) will call up the nomination today and then immediately file a motion invoking cloture, a move that requires 16 senators to sign a petition to end debate. Once the cloture petition is filed, two days must elapse before the Senate can vote on cloture. A cloture motion filed today will yield a vote on Thursday, according to Senate Rule 22, which governs the filibuster. The Senate can debate the nomination during that period or move on to other business and come back to it when the cloture vote occurs.

If the drama does come to a head on Thursday, here is what might happen. The cloture vote is a formal roll call of all 100 senators. Republicans would have to get 60 votes for cloture, which when invoked starts the clock running on 30 hours of debate followed by a final vote.

The current makeup of the Senate is 52 Republicans, 46 Democrats and two independents who meet and caucus with the Democrats. The Republicans will need to keep all 52 votes and pick up eight more from the Democrats to invoke cloture. Schumer predicted on Sunday that the Republicans would fall short. Only three Democrats, as of this morning, say they will vote for Gorsuch; one additional Democrat says he will oppose the filibuster by voting for cloture. That still leaves the Democrats a margin of several senators in holding the 41 votes they need to defeat cloture.

In some cases, the failure to get cloture might mean the nomination is dead. However, the next step may be even more dramatic. McConnell has vowed that if necessary, he will move to amend the Senate rules to do away with the filibuster for Supreme Court nominations. Through a parliamentary maneuver, commonly known as the “nuclear option,” the rules change can be accomplished with a simple majority of 51 senators. Although some Republican senators have expressed reluctance to change Senate rules, they may be heavily pressured by McConnell and the White House to fall in line if that is the only way to confirm Gorsuch. Both Trump and McConnell have staked considerable political capital on getting Gorsuch confirmed.

To set the nuclear option in motion, McConnell would ask for recognition on the Senate floor right after the cloture vote fails, calling for a point of order. His point of order would be essentially that the requirement of 60 votes to consider a Supreme Court nomination is unconstitutional because the Constitution does not specify any higher number for such nominations. A point of order cannot be debated and takes precedence over other matters in the Senate.

Once McConnell has made the point of order, the presiding officer of the Senate, either Vice President Mike Pence or the president pro tempore of the Senate, currently Sen. Orrin Hatch (R-Utah), would immediately declare the current rule unconstitutional. Democrats would then immediately appeal that ruling, but McConnell would move to table the appeal. Tabling the appeal requires only a simple majority vote. After the appeal has been tabled, the Senate rule would revert to the basic practice of a simple majority vote for Supreme Court nominations. With that change in place, the Senate would need only 51 votes to invoke cloture. The change would set the stage for what McConnell has announced as a final vote to approve Gorsuch on Friday.

Why is this battle over the filibuster so dramatic? The filibuster has been used in the Senate for more than 150 years. The term, according to the Senate’s website, is derived from a Dutch word meaning “pirate.” The filibuster was formally incorporated into Senate Rule 22 in 1917 and required a two-thirds vote of the Senate to cut off debate. Although the filibuster was not used that often, it was considered a hallmark of the deliberative nature of the Senate that even a single senator could hold the floor and force debate to continue.

Senate attitudes have been changing, however. As the institution has grown more partisan, the filibuster has itself become a target of debate. In 1975, the Senate changed the rule to require only a three-fifths vote to break the filibuster, currently 60 senators. In 2013, in a bitter partisan fight, the Senate changed the rule again so that debate on all nominations by the president, except those for the Supreme Court, may be halted by a simple majority vote.

Although Democrats now are likely to object to changing the rule, it was the Democratic Senate leadership that made the 2013 rule change. At the time, Democrats accused Republican senators of unfairly blocking Obama’s nominees to federal district and appeals courts, and they used the nuclear option to change the rule for all federal appointments except those of Supreme Court justices.

Historically, the filibuster has been used most famously by senators to block civil rights legislation. Southern senators prevented consideration of the 1964 Civil Rights Act for 60 days before it was finally approved. According to the Senate, the late Sen. Strom Thurmond of South Carolina has the record for talking on the Senate floor: Thurmond spoke for 24 hours and 18 minutes in order prevent a vote on a 1957 civil rights law.

Filibusters have been rare for Supreme Court nominations, but the Gorsuch nomination is not the first time the filibuster has come into play in this context. The most recent attempt to filibuster a Supreme Court nomination, discussed above, was the confirmation of Alito in 2006. The most successful filibuster was in 1968, when Republicans and Southern Democrats combined to block the nomination of Justice Abe Fortas to succeed Chief Justice Earl Warren. There were only 45 votes for cloture, so a vote on confirmation was blocked, and President Lyndon Johnson withdrew the Fortas nomination. Warren was eventually replaced by Chief Justice Warren Burger, who was nominated by President Richard Nixon in 1969.

Other Supreme Court nominees have failed to gain Senate confirmation. The earliest example dates back to 1795, and the most recent occurred in 1987, when the Senate rejected the nomination of Judge Robert Bork. Most of these rejections did not involve filibusters, however.

Whatever the outcome of the Gorsuch nomination, this will be a week filled with history, politics and drama in the Senate.

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Grassley supports Gorsuch nomination, calls filibuster threat a “smokescreen”

Grassley supports Gorsuch nomination, calls filibuster threat a “smokescreen”The Senate Judiciary Committee concluded its confirmation hearing for Judge Neil Gorsuch this afternoon. After undergoing two days of questioning, the nominee himself was not present at today’s proceedings, which featured a variety of witnesses. Unsurprisingly, Gorsuch has secured the vote of at least one senator, Sen. Chuck Grassley (R-Iowa), the chairman of the committee, […]

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Grassley supports Gorsuch nomination, calls filibuster threat a “smokescreen”

The Senate Judiciary Committee concluded its confirmation hearing for Judge Neil Gorsuch this afternoon. After undergoing two days of questioning, the nominee himself was not present at today’s proceedings, which featured a variety of witnesses. Unsurprisingly, Gorsuch has secured the vote of at least one senator, Sen. Chuck Grassley (R-Iowa), the chairman of the committee, who spoke briefly with the press after adjourning the hearing. Motioning to the witness table, Grassley said he did not understand how anyone could oppose Gorsuch’s nomination after “the performance of this guy for 22 hours.” Grassley further dismissed indications by Senate Minority Leader Chuck Schumer that Schumer would support a filibuster, which Amy Howe covered this morning. “We aren’t going to talk about a filibuster, or even worry about it,” Grassley continued, calling the threat a “smokescreen.” He encouraged a return to “normalcy,” which he described as “dispassionate regard to making a decision on people for the Supreme Court.” Grassley said earlier this week that he hopes to hold a committee vote on the nomination next Monday.

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Schumer announces “no” vote on Gorsuch nomination, would support filibuster

Schumer announces “no” vote on Gorsuch nomination, would support filibusterThe confirmation hearing for Judge Neil Gorsuch continues today, as senators hear from a variety of witnesses who are testifying for and against Gorsuch’s nomination to fill the vacancy left by the death of Justice Antonin Scalia. However, this morning’s biggest news on the Gorsuch nomination came from outside the hearing room. In an announcement […]

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Schumer announces “no” vote on Gorsuch nomination, would support filibuster

The confirmation hearing for Judge Neil Gorsuch continues today, as senators hear from a variety of witnesses who are testifying for and against Gorsuch’s nomination to fill the vacancy left by the death of Justice Antonin Scalia. However, this morning’s biggest news on the Gorsuch nomination came from outside the hearing room. In an announcement made over Twitter this morning, Senate Minority Leader Chuck Schumer announced that he “cannot support Judge Neil Gorsuch’s nomination to the Supreme Court.” That announcement was hardly a surprise. And because Republicans currently hold 52 of the 100 seats in the U.S. Senate, they wouldn’t need Schumer’s vote to confirm Gorsuch on a straight up-or-down vote. However, Schumer also seemed to suggest that he would support a filibuster of the Gorsuch nomination. Under the current Senate rules, if the Democrats were to threaten a filibuster, Republicans would need at least 60 votes to force a vote on the nomination – a process known as “cloture.” Schumer warned that “Judge Gorsuch’s nomination will face a cloture vote & as I’ve said, he will have to earn sixty votes for confirmation.” Schumer’s vote on cloture, he indicated, will be “no.” There was no indication yet, though, that 40 senators would vote against cloture to sustain a filibuster. A filibuster would put the ball in the Republicans’ court, possibly leading them to eliminate the filibuster for Supreme Court nominees, which would allow Gorsuch to be confirmed by a simple majority. Democrats made a similar change, known as invoking the “nuclear option,” to confirm lower-court nominees in 2013. That move drew strong condemnation at the time from Sen. Mitch McConnell, now the Senate Majority Leader, who would be left with a difficult choice.

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Live blog of confirmation hearing (Day Four)

Live blog of confirmation hearing (Day Four)We are live-blogging the fourth day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Join us.

The post Live blog of confirmation hearing (Day Four) appeared first on SCOTUSblog.

Live blog of confirmation hearing (Day Four)

We are live-blogging the fourth day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Join us.

The post Live blog of confirmation hearing (Day Four) appeared first on SCOTUSblog.

from http://www.scotusblog.com

Afternoon round-up: Day three of Judge Gorsuch’s confirmation hearing

Afternoon round-up: Day three of Judge Gorsuch’s confirmation hearingToday the Senate Judiciary Committee is holding the third day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Early coverage of today’s proceedings, which has so far featured round two of the senators’ questioning and will feature a third round this evening, comes from Adam Liptak, Charlie Savage, Matt […]

The post Afternoon round-up: Day three of Judge Gorsuch’s confirmation hearing appeared first on SCOTUSblog.

Afternoon round-up: Day three of Judge Gorsuch’s confirmation hearing

Today the Senate Judiciary Committee is holding the third day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Early coverage of today’s proceedings, which has so far featured round two of the senators’ questioning and will feature a third round this evening, comes from Adam Liptak, Charlie Savage, Matt Flegenheimer and Carl Hulse of The New York Times, Lawrence Hurley and Andrew Chung of Reuters, various contributors at NPR, Elise Viebeck, Robert Barnes and Ed O’Keefe of The Washington Post, Mark Sherman and Erica Werner of the Associated Press, Richard Wolf of USA Today, Seung Min Kim and Josh Gerstein of Politico, Debra Cassens Weiss of the ABA Journal, Matt Ford of The Atlantic and Ashley Killough of CNN.

Commentary on the hearings comes from Ilya Shapiro for Washington Examiner, Elizabeth Wydra for The Huffington Post, J. Douglas Smith for The Daily Beast, Lisa Keen of Keen News Service, Jonathan Bernstein at Bloomberg, the editorial board of USA Today and Ronald Cass at USA Today. Ian Millhiser of ThinkProgress discusses the court’s ruling this morning in Endrew F. v. Douglas County School District, which overturned a decision by the U.S. Court of Appeals for the 10th Circuit that employed a legal standard Gorsuch had applied in a previous 10th Circuit opinion.

Damon Root of Reason’s Hit & Run Blog and Ilya Shapiro and Frank Garrison for the Cato Institute look at aspects of Gorsuch’s jurisprudence.

The post Afternoon round-up: Day three of Judge Gorsuch’s confirmation hearing appeared first on SCOTUSblog.

from http://www.scotusblog.com

Live blog of confirmation hearing (Day Three)

Live blog of confirmation hearing (Day Three)We are live-blogging the third day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Join us.

The post Live blog of confirmation hearing (Day Three) appeared first on SCOTUSblog.

Live blog of confirmation hearing (Day Three)

We are live-blogging the third day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Join us.

The post Live blog of confirmation hearing (Day Three) appeared first on SCOTUSblog.

from http://www.scotusblog.com