It all began almost exactly one year ago: Supreme Court Justice Antonin Scalia was found dead in his hunting lodge in Texas. We all know what happened next. President Barack Obama nominated Merrick Garland to fill Scalia’s seat. Republicans, led by Senate Majority Leader Mitch McConnell, refused to allow Garland a hearing. The stonewalling paid off when Donald Trump won the presidential election in November. On Tuesday, President Trump nominated Neil Gorsuch, a federal appeals court judge in Denver, to fill the vacant post. But Gorsuch has a number of hurdles to clear before he can take a seat on the most coveted bench in the land.

First, he must complete a questionnaire that can run up to a few hundred pages long. Gorsuch will have to cite every opinion he has written. He will also have to divulge all of his sources of income–including speaking fees–and any essays and other documents he has written. The Senate will examine his answers, the FBI will conduct a background check, and members of the Senate Judiciary Committee will conduct investigations of their own.

Next, after procedural obstacles are cleared, the long and arduous journey to the confirmation hearing will begin. Gorsuch will meet privately with Senators of both parties. Meanwhile, Democrats and Republicans will hash out the details of the confirmation hearing, such as when it will be held, and how many witnesses will be allowed to participate. To prepare for the hearing, which can last three to four days, Gorsuch will undergo a mock hearing with his advisers, where they will try to foresee any questions that might be hurled his way.

The final step, a Senate vote, is where things can get really interesting. This is no ordinary vote. Many Democrats vividly remember how Republicans treated Garland; others seem ready to support Gorsuch. Confirmation, as the rules currently stand, requires 60 Senate votes. There are 52 Republican Senators and 46 Democrats (and two Independents). Therefore, if the GOP unanimously backs Gorsuch, they would need eight Democrats to push him through.

But the chorus of Democrats who wish to obstruct Trump’s nominee as the Republicans did Obama’s nominee is growing. As the rules stand, they do have that ability: Democrats could choose to filibuster and effectively refuse to give Gorsuch the 60 votes he needs to pass. There are signs, however, that McConnell is willing to change the rules to lower the threshold of votes needed to pass to 51, or a simple majority vote. If that happens, Gorsuch would sail through the confirmation vote.

In a meeting with McConnell and other Republicans, Trump seemed to support a rule change if it comes to that. “If we end up with that gridlock, I would say, ‘If you can, Mitch, go nuclear,'” he said. In 2013, Harry Reid, the Democratic Senate majority leader at the time who has since retired, provided a blueprint for a rule change. Responding to Republican opposition to Obama’s agenda, Reid slashed the filibuster option for cabinet positions and other presidential nominations, including judicial nominees. If McConnell embraces the same route, the rule change would affect Supreme Court nominations beyond Gorsuch, beyond Trump’s presidency, and beyond the current Republican hold on Congress.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Yesterday, President Barack Obama nominated Merrick Garland to the Supreme Court to fill the vacancy left by the death of Justice Antonin Scalia. Since Scalia’s death, Senate Republicans have been vowing that they will not hold hearings on whoever Obama nominates, because he’s in the last year of his office. But with Garland as his choice, Obama is essentially calling their bluff–Garland is by most accounts a moderate, and has received Republican support in the past. So, will the Senate Republicans continue to block Garland? Or will they “do their job?”

The news that Obama had chosen Garland as his nominee led to predictably mixed reactions around Washington. As expected, Republican leaders, including Senate Majority Leader Mitch McConnell and Senator Chuck Grassley, who chairs the Senate judiciary committee, both stuck to their lines that a new justice shouldn’t be chosen until the next President is in office.

A few Senate Republicans did acknowledge that the Senators should at least meet with Garland and vet him–Senator Susan Collins of Maine said:

I believe that we should follow the regular order in considering this nominee. The Constitution’s very clear that the president has every right to make this nomination, and then the Senate can either consent or withhold its consent.

A few other Republicans, including Senator Jeff Flake, admitted that they would consider nominating Garland in a lame duck session if Hillary Clinton (or another Democrat) is elected in November.

As expected, most Democrats responded to the Republican blockade with frustration. The senior-most Democrat on the Senate Judiciary Committee, Senator Patrick Leahy stated:

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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After the death of Supreme Court Justice Antonin Scalia last month, all eyes are on President Barack Obama as he seeks to nominate a SCOTUS replacement. A few names have been floating around for a while–all top judges and advocates in the U.S., but now a source from the White House has reported that Obama has narrowed the search down to three potential options:

Sri Srinivasan

Image courtesy of United States Department of Justice via Wikimedia

Sri Srinivasan is only 49, and would be the first Asian-American and Hindu Supreme Court justice. He was born in India and then emigrated to Kansas with his family. He went to Stanford University for both his undergraduate degree as well as law school. He clerked for former Supreme Court Justice Sandra Day O’Connor, and worked in the Solicitor General’s office under both President George W. Bush and Obama. Srinivasan currently sits on the U.S. Court of Appeals for the DC Circuit. When he was nominated to that position by Obama back in 2013, he was approved unanimously. 

Tom Goldstein of SCOTUSBlog conducted a seemingly exhaustive review of Srinivasan’s decisions while on the bench and came to the conclusion that he “seems to be as moderate a judge as Republicans could expect a Democratic president to nominate. His views seem to be solidly in the center of American legal thought.” Goldstein puts Srinivasan’s ideology on par with current Justice Elena Kagan.

Merrick Garland

SC Nom -Merrick Garland, chief judge US Court of Appeals for District of Columbia Circuit,https://t.co/k94iam2oISpic.twitter.com/dE4SkpINkN

— Blanche V. Mercaldi (@tammytabby) March 15, 2016

Merrick Garland also sits on the U.S. Court of Appeals for the DC Circuit. He’s 63, and a graduate of Harvard University and Harvard Law School. He clerked on the Supreme Court when he was younger, for Justice William Brennan, and worked for some time in the private sector. He was nominated to the bench by President Bill Clinton. He’s also not clearly partisan; Vox’s Dylan Matthews cites the fact that he’s very pro-law enforcement as something that will be attractive to Republicans. He was considered as a replacement for retired Justice John Paul Stevens as well, so it makes sense he’s on the list again.

Paul Watford

Southern California’s Paul J. Watford is among Obama’s top choices for Supreme Court … https://t.co/yE2wKTwBmUpic.twitter.com/6LSKqtWSyq

— hypervocal (@hypervocal) March 14, 2016

U.S. 9th Circuit Court of Appeals Judge Paul J. Watford is 48. A Southern Californian, Watford went to Berkeley, and then UCLA Law. Like the other two contenders on the list, he clerked for a Supreme Court Justice–Justice Ruth Bader Ginsburg. Then he worked in the U.S. Attorney’s office and in the private sector before he was nominated to the bench by President Obama in 2011. However, he was only confirmed by a 61-34 vote, and was vehemently opposed by Senator Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee.

Pushback from the Republicans

The Republicans in the Senate have vowed not to hold hearings for any nominee that Obama proposes. The RNC is going so far as to launch a task force that will support those Senate Republicans with ads, petitions, and media campaigns. While the three choices that appear to be on the table are rather moderate, it doesn’t seem like the Republicans will really be playing ball. As White House spokesperson Josh Earnest quite bluntly put it:

It’s clear what Republicans are planning to do. They are planning to tear down the president’s nominee, without regard to who that person is.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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