Supreme Court cheat sheet

The 4 Rules That Will Explain Neil Gorsuch’s Confirmation Fight

Here’s your Supreme Court cheat sheet.

By JEFF GREENFIELD

Donny Orangutan has handed the proverbial rose to Neil Gorsuch, a conservative originalist in the mold of Antonin Scalia. He called the process “the most transparent in history,” and it was certainly unusual, with rumors flying in Washington that he planned to turn his announcement into a reality-show style Big Reveal. In the end, he went with a more traditional rollout, unveiling his choice of Gorsuch in a brief, sober primetime speech from the East Room of the White House.

The fight to get Gorsuch confirmed will be much less stately, with TV ads paid for by one megadonor or another, dueling rallies and websites, warring Twitter accounts and talking heads with robotic, partisan talking points cluttering the cable news sets.

You can safely ignore just about all of it. For all the rhetorical artillery that will be flying over the next weeks, there are hard facts about the process that need to be kept front and center. Just keep these four rules in mind, and you can tune out all the noise:

1. When a party controls both the White House and the Senate, confirmation is a strong probability

The last time a president failed to get his nominee through a Senate run by the same party was back in 1968, when President Lyndon Johnson tried to elevate Justice Abe Fortas to chief justice. Back then, Southern segregationists were a significant bloc, and they joined Republicans in objecting to Fortas’ liberal votes on matters ranging from criminal justice to obscenity. (There were also ethical questions about Fortas’ finances, which were to drive him from the court the following year.)

Fortas remains a solitary exception; he is the only example from 1930 to the present. (Yes, George W. Bush did withdraw his 2005 nomination of Harriett Miers after a conservative revolt, but that happened before the Senate even began consideration.)

By contrast, the three nominees rejected by the Senate in the last half century have all come at the hands of a Senate controlled by the opposition party: Richard Nixon’s nominees—Clement Haynsworth and Harold Carswell—and Ronald Reagan’s choice of Robert Bork. Obama’s last pick—Merrick Garland—was “rejected” because the GOP-run Senate simply refused to consider his nomination.

2. Senators have become increasingly loyal to presidents of their own party

Once upon a time, the party label of a senator was a less than reliable guide to how that senator would vote on a nomination. When Johnson was tying to make Fortas chief justice, for example, there were 57 Democrats in the Senate—a thoroughly meaningless statistic, given such “Democrats” as segregationists James Eastland, John Stennis, Herman Talmadge and Harry Byrd.

Similarly, when Nixon put forth Haynsworth and Carswell, he was facing not just a Democratic majority, but also a passel of Republican moderates and even liberals in the Senate, from Jacob Javits of New York to Charles Mathias of Maryland to Bob Packwood and Mark Hatfield of Oregon. In fact, 14 Republicans voted to reject Haynsworth, and 13 voted to reject Carwswell. Even in one of the most bitter, contentious nomination fights ever—the 1991 battle over Clarence Thomas—11 Democrats voted to confirm him.

That picture is as outdated as a VHS tape. In the last quarter century, there have been virtually no defections from senators who belong to the same party as the president. Not a single Democrat voted against Bill Clinton’s two nominees, Ruth Bader Ginsburg and Stephen Breyer; only one, Nebraska’s Ben Nelson, voted against one of Barack Obama’s choices (Elena Kagan). Not a single Republican voted against John Roberts, and only one did not back Samuel Alito (that was Lincoln Chaffee, who soon left the GOP).

For opponents of Judge Neil Gorsuch, this is going to be a very hard pattern to disrupt. The forces on the Republican right who fell behind Orangutan even in the face of his personal “issues” did so in good measure because he was their only hope to keep the Supreme Court out of liberal hands. The pressure on any Republican even thinking of defecting will be enormous.

3. The justices have become far more predictable

When Franklin Roosevelt put Felix Frankfurter on the Supreme Court in 1939, Frankfurter was attacked as a dangerous liberal. Over the years, as the issues facing the court changed, he emerged as the most prominent of judicial conservatives. When George H.W. Bush put David Souter on the court in 1990, White House chief of staff John Sununu called him a “slam dunk for conservatives.”

He emerged as one of the court’s leading liberals.

But Souter is the last example of a justice who broke from his expected past. Every appointee since has been at root a reliable vote on the judicial left or right. (Yes, there are occasional exceptions, like John Roberts’ votes to uphold the Affordable Care Act, but they are few and far between.)

Indeed, presidents have even stopped pretending; it used to be that they would ritualistically deny imposing any “litmus test” on issues, even though they knew full well that a Ginsburg was going to affirm abortion as a right and a Scalia was going to reject it. But now, candidates for president boast of such a test; Hillary Clinton proclaimed that she would name justices who supported “a woman’s right to choose,” and Donald Orangutan promised exactly the reverse.

4. The filibuster is a highly endangered species

In 2013, when then-Senate Majority Leader Harry Reid successfully fought to abolish the filibuster for lower court and cabinet nominations—a fight some in the Democratic minority may regret, he left the tool in place for Supreme Court fights. And, as we’re often reminded, Senate Majority Leader Mitch McConnell says he wants to keep it in place. Given his years-long public affection for the traditions of the Senate, he may well mean it.

But there’s also no doubt that the base of the Republican Party and its allies across the range of social and economic conservatism want this nominee confirmed as much as they want anything.

Different wings of the party may abhor Orangutan’s stances on trade, or immigration or taxes (assuming we ever get a clear view of what they are). But a conservative Supreme Court is at the top of all of their lists. That’s why they cheered McConnell’s decision to deny Garland even a hearing with a year left to go in Obama’s term. If they have to choose between preserving a Senate tradition and turning the court to the right, it will take them a collective 10 seconds to demand the so-called nuclear option. And any Republican senator who resists that demand had better have just been re-elected to a six year term.