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  • Op-ed published in The Hill

Old confirmation playbook may not apply to Gorsuch nomination

Strategy memos and talking points are flying around Washington as Democrats and Republicans begin a fierce battle over the nomination of Neil Gorsuch to the Supreme Court.

I am not on the Democrats' recipient list, but a dozen years of watching these battles from up close tells me a lot about how this contest will play out. Even so, the unique aspects of this confirmation fight ensure surprises.


This op-ed was authored by CFJ President Curt Levey and originally published in The Hill.


It was always a good bet that Democrats would focus this battle on President Trump as much as on the nominee. Any doubt about that disappeared on Friday, when the president's immigration order enraged his opponents and sent them looking to the courts.

At a minimum, Senate Democrats will use their questions during Gorsuch's week-long confirmation hearings to indirectly attack the president, as they have already done with his Cabinet nominees. Don't be surprised if Democrats question Trump's legitimacy to make Supreme Court nominations and hold Gorsuch's nomination hostage to extraneous demands on the president.

Senate Republicans need not stand in the way of their Democratic colleagues' impulse to go down that path. Trump Derangement Syndrome will serve to distract them from what will otherwise be a campaign to personally destroy Gorsuch.

The flow of previous Supreme Court confirmation battles has been driven largely by senators on both sides, with the president remaining fairly quiet after his initial introduction of the nominee. This confirmation process may well be different, with President Trump's tweets and other remarks driving the flow.

Another unique aspect of this contest is its occurrence at the very beginning of a presidency, before the Justice Department and White House are fully staffed. Whatever disadvantage that might put the Trump administration at should be more than compensated for by the support and resources of numerous outside groups and the advice of veterans, like Leonard Leo, who have been in this game for more than twenty years.

In previous contests, Democrats have had no prior Supreme Court confirmation grievances to rally around. This time will be different. Expect to hear Merrick Garland's name mentioned as often as Neil Gorsuch's.

Democrats are mourning the loss of an opportunity to install a liberal majority on the High Court. Republicans should allow them to grieve, while reminding the American people of the very unique circumstances that justified the GOP's Garland strategy. Had Garland been confirmed, it would have been the first time since 1888 that a president made a successful Supreme Court nomination during a presidential election year while the opposing party controlled the Senate.

The election results are probably the best retort to Democratic senators' tears about Merrick Garland. Democrats tried to use Republican "obstruction" of Garland to their advantage in numerous Senate campaigns and failed miserably. Similarly, the 21 percent of voters for whom Supreme Court appointments were the most important factor in their presidential decision voted overwhelmingly for Donald Trump.

Despite the unique aspects of this confirmation fight, there is a favorite page in the Democratic playbook that will almost surely be turned to again. It instructs that white male judicial nominees be portrayed as a danger to women, minorities, or some other identity group. Recall

Sen. Ted Kennedy's hysterical but politically effective warning in 1987 that "Robert Bork's America is a land in which … segregated lunch counters" are just one of many horribles. Even pro-choice Justices Anthony Kennedy and David Souter were said by Democrats to be a danger to women at their confirmation hearings.

Never mind that an examination of Neil Gorsuch's record reveals no such dangers. An ominous impression can always be created by cherry picking a nominee's judicial decisions and speeches. Because this tactic aligns perfectly with the Democrats' "Trump is a bigot" theme and provides raw meat to feed an angry base, it will be irresistible.

Republicans and their allies must counter each distortion of Judge Gorsuch's record, while emphasizing that his confirmation would merely restore the Court's ideological balance prior to Justice Scalia's death. It is, thus, ludicrousness to claim that "Gorsuch's America" will include a parade of horribles that didn't exist when Scalia was on the bench.

The demands of the Democratic base for a filibuster could also prove irresistible. However, filibustering Gorsuch's nomination cannot prevent the president from filling Justice Scalia's seat unless the tactic is repeated continually until Trump leaves office or Democrats retake the Senate. That's nearly impossible.

Moreover, Senate Republicans will likely react by invoking the "nuclear option" to permanently eliminate the filibuster for Supreme Court nominations, leaving Democrats with no leverage when Trump fills additional vacancies on the Court. If Democrats are smart, they will save a filibuster attempt for the higher stakes game of replacing Justices Ginsburg or Kennedy.

If not, Republicans will try to convince eight red state and swing state Democrats to vote for cloture before turning to the nuclear option. Democrats can vote against Gorsuch's confirmation without being seen as obstructionists if they first vote for cloture. More than a dozen Democratic senators took that route when voting on Justice Alito's nomination in 2006.

In the end, the most likely Democratic strategy is to simply delay the confirmation process in an attempt to prolong the theatrics and in the hope that negative information about Gorsuch can be uncovered. While Republicans should not rush the process, putting Gorsuch on the High Court by April 16, the start of this term's final session of oral arguments, is both reasonable and important.

My final piece of advice applies to both parties. Expect the unexpected as Trump the disrupter firmly puts his stamp on the confirmation process. Your tried-and-true playbooks may turn out to be of little use in this contest, but I can promise the game will be gripping.

Curt Levey, a constitutional law attorney with FreedomWorks and the Committee for Justice, is a graduate of Harvard Law School and a veteran of Supreme Court confirmation battles.

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