People For the American Way

Gorsuch and the Senate GOP’s Alternative Universe

News and Analysis

In their efforts to get the ultra-conservative Neil Gorsuch onto the Supreme Court, Senate Republicans have moved beyond creating “alternative facts.”  They’ve created an entire alternative universe.

If Gorsuch has earned so little bipartisan support that he cannot get the support of 60 senators (as all six successful nominees of the past three presidents were able to do), Mitch McConnell is threatening to change the Senate rules to allow Supreme Court nominees to be confirmed by party-line majority votes. He and his colleagues portray Judge Gorsuch as mainstream, the absence of consultation as bipartisanship, and themselves as victims of unprecedented and unprincipled partisan obstruction from the Democrats. Republicans don’t want to trigger the “nuclear option,” they claim through crocodile tears, but will have no choice but to do so if those mean Democrats insist on a 60-vote threshold.

Listening to them, you’d think they were the injured party. You’d never know that:

  • Republicans refused to even hold a hearing for Merrick Garland, President Obama’s nominee for this very vacancy. To justify this unprecedented move, they claimed that it had been decades since any president was permitted to immediately fill a vacancy that arose in a presidential election year. They were careful not to mention the reason for that: It’s rare for justices to die in office, and Justice Scalia was the only justice since 1950 to pass away during an election year. The refusal to even consider Judge Garland for the Supreme Court was unprecedented, a pure power play that drew wide condemnation.
  • Republicans defended the 60-vote margin during the Obama years as a safety mechanism to encourage presidents to consult with senators of the opposing party and select judicial nominees with bipartisan support.

Conservatives claim that Democrats should support Gorsuch because his nomination was the culmination of the most transparent Supreme Court selection process in history, since Trump listed his potential nominees before the election. In fact, this may have been the least transparent selection process in history, designed to lead to an extremist nominee rather than one who could garner bipartisan support.

  • We have seen transparent and bipartisan selection processes before, and they looked nothing like what we have seen with the current nomination. For instance, President Clinton consulted closely with Orrin Hatch, then the ranking Republican on the Judiciary Committee, before making his two Supreme Court nominations. And that consultation was genuine: Based on Sen. Hatch’s advice, Clinton passed over his original first choice, acting transparently and in a manner to encourage bipartisanship.

Republicans can posture as a principled, wounded party forced to trigger the nuclear option, but that simply isn’t reality. Since the death of Justice Scalia—indeed, since the moment President Obama took office—they have time and again escalated their partisan approach to the selection of judges. They held Obama circuit court nominees to a 60-vote threshold, then refused to allow votes at all on three D.C. Circuit vacancies regardless of who they were, and then refused to even hold a hearing for a Supreme Court nominee.

Senate Republicans did not enter this presidency with clean hands.

And while much of the GOP obstruction since 2009 had nothing to do with the nominees themselves, Democrats’ opposition to Gorsuch is based on his record. Democrats have not said that they will oppose anyone who Trump nominates. In fact, as Senate Minority Leader Chuck Schumer has said numerous times, if Gorsuch cannot earn 60 votes, the solution is not to change the rules, but to change the nominee.

It’s clear that Senate Republicans have created an alternative universe worthy of a Star Trek episode.