This image was removed due to legal reasons.

President Trump didn't spend a lot of time talking about the Supreme Court during his campaign, but he did pledge to nominate a justice "in the mold of" the late Antonin Scalia. He has done exactly that with his selection of Neil Gorsuch.


An analysis of the court's ideological composition from The New York Times puts the appeals court judge and George W. Bush appointee to the right of Scalia and a little to the left of its most conservative and weirdly quiet member, Clarence Thomas. Gorsuch is aligned with those justices on issues from reproductive health to religious liberty, and his confirmation could be the first step toward transforming the court from a center-right body to a blazing Originalist fire that will consume anything in its path for at least a generation.

But because the filibuster is still intact for Supreme Court nominees, Republicans will need the cooperation of at least eight Democrats to confirm Gorsuch. The question now is whether or not the minority party will fight the nomination as they've said they would, sticking to the argument that this is a "stolen seat" hijacked by Senate Majority Leader Mitch McConnell during the last nine months of Barack Obama's presidency.


The answer is probably no, they will not, either because Democrats don't quite have the stomach for that kind of scorched earth obstruction or because their Republican colleagues will kill the filibuster altogether or some combination of both.

Think of that what you will—common sense or a kind of pathological cowardice in the face of a political crisis—but if Democrats did want to try to torch the process, Senate Republicans and conservative legal scholars have already laid out a path to do so.

The first is just blunt obstruction of the sort recommended by Richard Burr, a Republican senator from North Carolina who told a group of his campaign volunteers: “And if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

Or Texas Sen. Ted Cruz, failed presidential candidate, who told the Washington Post essentially the same thing:



You know, I think there will be plenty of time for debate on that issue [of whether to confirm Clinton nominees]. There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.


Or Arizona Sen. John McCain, who said during a radio interview that Republicans would be "united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up." (He later hedged somewhat, saying he would vote for or against a nominee based on their qualifications.)

The argument also extended beyond the Senate and into conservative legal circles that were contemplating the long-term consequences of a possible Hillary Clinton presidency.


Of particular note, at least in light of Trump's unprecedentedly low approval numbers and popular vote loss, was an argument advanced by Ilya Shapiro, a senior legal fellow at the libertarian Cato Institute, who wrote for the Federalist back in October:



As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally. I’m not sure such a position is politically tenable—barring some extraordinary circumstance like overwhelming public opinion against the legitimacy of the sitting president—but it’s definitely constitutional.


Interesting!