What Comes Next For Neil Gorsuch

DAVID GREENE, HOST:

We may be approaching a historic moment in the U.S. Senate. Republican leaders say if Democrats filibuster to stop the nomination of Neil Gorsuch to the Supreme Court this week, they will change the rules so a filibuster won't work with this nomination or future nominations.

And we're going to talk about the ramifications of that with Leonard Leo. He is President Donald Trump's Supreme Court adviser, executive vice president of the Federalist Society for Law and Public Policy Studies and a veteran of Supreme Court nomination battles. Mr. Leo, thanks for coming in.

LEONARD LEO: My pleasure. Good morning.

GREENE: So you have been speaking to people in the White House. Does the White House want the Senate rules blown up this week?

LEO: No, I don't think the White House wants any rules blown up. I think they want their nominee confirmed. And I think they would prefer to have a simple majority up or down vote like we used to have with Supreme Court nominees through most of American history.

GREENE: There's been talk of some sort of compromise that, I mean, if Democrats were to not filibuster and to let this nominee through, that there would be some agreement that future nominees from this administration could be filibustered. Is that something the White House would be open to talking about if something coalesced around that idea?

LEO: The White House really wouldn't be a part of those discussions. Those are conversations that normally take place just between Republican and Democrat senators. And there were conversations along those lines probably about a week ago, but there's not been a lot of discussion for a little while so far.

GREENE: Why is that? Because, I mean, I feel like we've come to moments like this in the Senate before. And you have, you know, the famous Gang of 14, or you have a bipartisan group of senators who come together and at the last minute stop something like this from happening.

LEO: Well, I think a lot of Republican senators that I've talked to believe that there have been two standards in the judicial nominations context, that basically for Republicans there's been a lot of filibustering, very split votes over their nominees. But for Democrats, those nominees get wide support from Republicans quite often. And there hasn't been the same kind of filibustering taking place by Republicans. So there's a bit of a sense amongst Republicans that there's a double standard.

Amongst Democrats, I think there's been less conversation more recently because, you know, the leadership of the Republican Party is prepared to invoke the so-called nuclear option. And I think Democrats feel that things are too far along at this point to probably get a deal.

GREENE: And Democrats also probably feeling like maybe there's a different standard they're looking at. And it's Merrick Garland, President Obama's nominee, was held up by Republicans and, in their view, obstructed.

LEO: There's no question that the Democrats are very upset by what happened with Judge Garland. And I'm sure that colors some of the conversation and negotiations right now.

GREENE: Let me ask you. You obviously respect this process. You've been involved in it for a very long time. The Senate is a place that - where bipartisanship has always had a home. It's one reason for these rules. If this rule is blown up, if the nuclear option is invoked this week, doesn't it mean that any president can push through, say, a much more radical nominee in the future? And does it change the whole tone and tenor of this institution?

LEO: You know, I'm not really as concerned about that as other people are. And the reason is because really, the invocation of this rule is just going to take us back to a situation where we have simple majority up or down votes for Supreme Court nominees. And that's really what's happened through the 210-year history of the Senate. So basically, what will happen, I think, is what happened, you know, with Judge Bork or with Justice Thomas or with - or with Sotomayor or Kagan. We had basically situations where there was agreement on the amount of time that would be spent on debate, and then there was a simple majority up or down vote.

So, you know, Justice Thomas, for example, only got 52 votes. Justice Alito only got 58. You know, there was no filibuster. Nobody thought of having one. And I think if you look at what's happened with Supreme Court confirmation votes over the course of time, we've had a lot of balance without having to have filibusters and without having to have 60-vote thresholds.

GREENE: You sound much more optimistic about the bipartisanship in the Senate than most people who are serving in the Senate.

LEO: Well, I think generally speaking, senators don't like to take extreme action. They like to do things in a relatively balanced way. And for the most part, you've seen some bipartisanship with regard to Supreme Court nominations, seven senators voting for Kagan, similar number voting for Sotomayor. So I think we're going to be in a good spot whether this rule is - whether this rule is adopted or not.

GREENE: Leonard Leo is President Trump's Supreme Court adviser. Thanks for coming in.

LEO: Thanks.

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