Gorsuch Lessons for Trump’s Next Nominee

If another Supreme Court vacancy opens, the fight to confirm the president’s choice won’t be pretty.


Neil Gorsuch arriving at the Senate Judiciary Committee, March 20.

Neil Gorsuch arriving at the Senate Judiciary Committee, March 20. PHOTO: EUROPEAN PRESSPHOTO AGENCY

Republicans have created a political machine for confirming conservative nominees to the Supreme Court. It functioned like a well-run presidential campaign after President Trump nominated Neil Gorsuch to succeed the late Antonin Scalia. And it needed to perform, despite Justice Gorsuch’s impressive credentials.

The effort to confirm pulled off two surprises. As divided as Republicans are on health care, they were united behind Judge Gorsuch once the few wavering senators were won over. Even more unusual, Mr. Trump was all but silent on Judge Gorsuch—no tweets, no controversial comments to the press, no distractions.

The Gorsuch experience has strengthened Republicans, should Mr. Trump have a second Supreme Court vacancy to fill. Democrats won’t be able to block the new nominee by filibuster, having foolishly forced Senate Majority Leader Mitch McConnell to confirm Justice Gorsuch by invoking the “nuclear option” to kill the filibuster of his confirmation. 

That isn’t to say that the next nominee will have smooth sailing. If Justice Anthony Kennedy, the swing vote, or any of the four liberal justices retires, the court’s ideological balance will be at stake. One issue in particular will rise to the top: abortion. Democrats will insist that a new conservative justice would be the fifth vote to overturn Roe v. Wade. Moderate GOP senators might agree. Republicans control the Senate with only a narrow margin, 52-48.

The struggle over Mr. Trump’s second nominee would probably make the fight over Justice Gorsuch seem cordial. Democrats have vowed total resistance. The confirmation machine would have the benefit of its experience with Mr. Gorsuch and the ability to deploy its forces quickly.

In the 11 months between Justice Scalia’s death and the Gorsuch nomination, a lot happened. Mr. McConnell’s decision to keep the seat open for the next president to fill unnerved even some Republican senators. When Sen. Jerry Moran of Kansas said President Obama’s nominee, Merrick Garland, deserved hearings, he was pressured to change his mind, which he did.

Democrats targeted Chuck Grassley of Iowa, chairman of the Senate Judiciary Committee, who faced re-election in 2016. The media declared his seat in jeopardy if no Garland hearings were held. To bolster him, op-eds backing his refusal to schedule hearings began to appear in Iowa papers. At a town hall, a woman stood up and thanked the senator for standing strong. Mr. Grassley was re-elected with 60% of the vote.

The confirmation machine began gearing up in March 2016, when Washington attorney Don McGahn introduced Mr. Trump to Leonard Leo, the executive vice president of the Federalist Society. Mr. Trump said he wanted a list of potential conservative nominees to the Supreme Court. Mr. Leo not only produced it, but added a second list that included Judge Gorsuch. The list of 21 names became critical once Mr. Trump declared that he would pick from it if he became president. Mr. McConnell believes this not only made the Supreme Court the “principal” issue in the campaign, but made Mr. Trump acceptable to wary Republican voters.

Everyone played his role perfectly. Upon being nominated, Judge Gorsuch’s job was to be an appealing witness at his confirmation hearings. He was never argumentative. Mr. McConnell concentrated on keeping Republican senators from bailing out. Mr. McGahn, now the White House counsel, handled Mr. Trump. Mr. Leo, who had earlier helped in confirming Chief Justice John Roberts and Justice Samuel Alito, took leave from the Federalist Society to run the outside campaign. 

Mr. Leo kept this last part quiet and orderly. When Judge Gorsuch was hit with a last-minute charge of plagiarism, the appropriate academics had already been lined up. They dismissed the charge as unwarranted. Mr. Leo insisted on no surprises. There were none.

The well-funded Judicial Crisis Network and its chief counsel, Carrie Severino, were a key part. Also arranged were TV ads by the National Rifle Association, which urged four Democratic senators to vote for Judge Gorsuch. Two of them did. The last hurdle was locking up three holdout Republican senators, Susan Collins of Maine, Lisa Murkowski of Alaska and Bob Corker of Tennessee. If they had voted against eliminating the filibuster, Justice Gorsuch might not be on the court today. Mr. Corker, who regarded the filibuster as a valuable Senate tradition, was flooded with pro-Gorsuch phone calls, and the possibility of a primary challenger was raised. He complained but voted to end the filibuster anyway.

With a second nominee, the confirmation machine faces a threshold question: Will President Trump choose from the list? He hasn’t said so. Before picking Judge Gorsuch he interviewed three other candidates and was especially impressed with the runner-up, Judge Thomas Hardiman of the Third U.S. Circuit Court of Appeals. He is 51.

There’s considerable risk for Mr. Trump if he chooses a nonconservative, says Ann Corkery, a Washington lawyer who worked to confirm Justice Gorsuch. “Along with David Souter, the lesson of Harriet Miers should not be forgotten,” she says. Justice Souter, appointed by President George H.W. Bush, joined the court’s liberal faction. Ms. Miers, the White House counsel whom President George W. Bush nominated to the high court, dropped out after conservatives opposed her. “Conservatives are not going to just roll over because it’s a Trump nomination,” Ms. Corkery says.

Mr. McConnell expresses confidence. If a second Supreme Court vacancy arises, he said in an interview shortly after Mr. Gorsuch’s confirmation, “I think we are going to see a quality nominee.” The list is brimming with them, conservatives all, with a political machine eager to get behind them.

Mr. Barnes is executive editor of the Weekly Standard and a Fox News commentator.

Correction: An earlier version of this article misstated the judicial circuit on which Judge Thomas Hardiman sits.

Appeared in the Apr. 19, 2017, print edition.


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