Last March, President Obama nominated Merrick Garland to replace deceased justice Antonin Scalia.  The Republicans refused to consider the nomination during an election year and took the position that the next president should be allowed to fill the vacancy.

President Trump has nominated Neil Gorsuch to replace Scalia.  Two months after Scalia’s death, Gorsuch praised him as a “lion of the law” whose “great project” was to denote “the differences between judges and legislators”.

Like Scalia, Gorsuch is an “originalist”–he adheres to the idea that judges should interpret the constitution in the light of its meaning when it was adopted.

Eleven years ago, Gorsuch sailed through senate confirmation to his present seat on a federal appeals court.  This time, it may be trickier.  Republicans cannot rely on their majority to get Gorsuch confirmed.  Senate rules permit any member of the minority party to wage a filibuster that only a 60 vote super majority can stop.  If Democrats do this, the only path to filling the seat may be the “nuclear option”–a simple majority vote to change Senate rules and abolish the filibuster for Supreme Court nominations.

The concern is that such a move would further politicize the judiciary.  However, it has been observed that the Supreme Court is already an institution fraught with partisanship.1

by Patrick Gaffney

by Patrick Gaffney

1This blog contains excerpts and arguments from:   “Neil Gorsuch is a Good Pick for the Supreme Court”.  The Economist.  February 4, 2017.  Retrieved from: