Since the moment Justice Kennedy stepped down, an intense, mostly friendly battle has been waged in public and in private over Judge Brett Kavanaugh. Some of the claims are silly. He’s no “squish.” He’s a brilliant jurist who’s written some of the best and most influential appellate-court decisions in the United States. And whisper campaigns that call him the “low-energy Jeb Bush pick” or claim that he’d somehow be a “compromise” nominee are simply wrong.
Let’s put it this way: If Kavanaugh is some sort of deep-cover David Souter, he’s done a remarkably good job of hiding it, building a mountain of stellar originalist jurisprudence. Ed Whelan has been doing yeoman’s work over on National Review’s Bench Memos blog, righteously defending Kavanaugh’s record on religious liberty, the Second Amendment, free speech, immigration, and the administrative state. And Ed isn’t alone. Pieces from former Kavanaugh law clerks at The Federalistand at NRO have ably defended him from attacks and highlighted the best parts of his jurisprudence.
In evaluating Kavanaugh, there’s only one reasonable conclusion to draw: He’d be an excellent Supreme Court justice, and he would make the Court substantially more originalist and rigorous.
But saying that he’s an excellent pick is not the same thing as saying that he’s the best available pick. There’s a difference between a home run and a grand slam. The question — given this unique moment in which the Trump administration is listening to the best conservative legal minds, Republicans control the Senate, and the filibuster is a thing of the past — is whether Kavanaugh represents the grand slam.
I have my concerns, and those concerns are rooted in two cases that have been oft-misrepresented in the debate over Kavanaugh but are consequential nonetheless. The first is Seven-Sky v. Holder(better known as Kavanaugh’s Obamacare case). The second is Priests for Life v. HHS (an Obamacare contraception-mandate case.) In both cases, his reasoning is sharp and his legal decisions are defensible. In both cases, however, I believe he made important errors.
Let’s deal with Seven-Sky first. Judge Kavanaugh wrote an opinion dissenting from the majority’s determination that it had jurisdiction to hear the plaintiff’s challenge to Obamacare. He did not reach an opinion on the underlying merits of the case, which is to say, on the question of whether Obamacare was constitutional.
The legal details matter here. Kavanaugh held that the Anti-Injunction Act applied to bar the plaintiffs’ suit. As he explained, “Under the Anti-Injunction Act, a taxpayer seeking to challenge a tax law must first pay the disputed tax and then bring a refund suit, at which time the courts will consider the taxpayer’s legal arguments. Or a taxpayer may raise legal arguments in defending against an IRS enforcement action. But a taxpayer may not bring a pre-enforcement suit.” The challenge to Obamacare was a “pre-enforcement suit” and was thus barred:
The Anti-Injunction Act applies here because plaintiffs’ pre-enforcement suit, if successful, would prevent the IRS from assessing or collecting tax penalties from citizens who do not have health insurance. To be sure, the Affordable Care Act labels its exaction for failure to have health insurance as a tax “penalty” and not as a “tax.” But the Anti-Injunction Act still applies. That’s because the Affordable Care Act requires that the tax penalty for failure to maintain health insurance “be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68” of the Tax Code. 26 U.S.C. § 5000A(g)(1). And penalties under subchapter B of chapter 68 in turn must “be assessed and collected in the same manner as taxes.” 26 U.S.C. § 6671(a) (emphasis added). It follows from those two provisions, taken together, that these Affordable Care Act penalties must be assessed and collected “in the same manner as taxes.”
This is a defensible reading of the relevant Obamacare provisions. Indeed, while the majority in the most consequential Obamacare case to reach SCOTUS, NFIB v. Sebelius et al., did not apply the Anti-Injunction Act, it did hold that the penalty was a tax. That was a reasonable response to the statutory language, but it was wrong. The Obamacare penalty was a penalty, not a tax. Justices Scalia, Alito, Thomas, and Kennedy made the better argument, in their stinging dissent:
In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964), in turn quoting Scales v. United States, 367 U. S. 203, 211 (1961)). In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held — never — that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power — even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).
While it is most certainly true that Judge Kavanaugh did not rule on the underlying constitutionality of what he called the “tax penalty” (and he offered a ringing critique of the government’s Commerce Clause justifications for the individual mandate), he got the fundamental question (tax or penalty?) wrong, and Justices Kennedy, Scalia, Alito, and Thomas got it right. That’s a cause for some concern.
There is also cause for concern in his reasoning in Priests for Life. His dissent reached the right result, but his reasoning was dangerously flawed in one key respect: He excessively inflated the government’s interest in facilitating access to contraceptives.
As he explained in his opinion, he had to consider three questions: Did the contraception mandate “substantially burden” Priests for Life’s “exercise of religion”? If so, were the Obama administration’s regulations justified by a “compelling” governmental interest? And, finally, if there was a compelling governmental interest, did those regulations represent the “least restrictive means” of advancing that interest? Here were Judge Kavanaugh’s conclusions:
First, under Hobby Lobby, the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.
Second, that said, Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.
Third, this case therefore comes down to the least restrictive means question.
Judge Kavanaugh held that the Obama administration had not chosen the least restrictive means to advance its allegedly “compelling” interest, and therefore would have ruled for Priests for Life.
The problem is with his second conclusion. Here’s how he explained it later in his opinion:
Justice Kennedy strongly suggested in his Hobby Lobby concurring opinion — which appears to be controlling de facto if not also de jure on this particular issue — that the Government generally has a compelling interest in facilitating access to contraception for women employees.
Is that correct? And if his summary of Justice Kennedy’s concurrence is correct, then was Judge Kavanaugh actually bound to follow it?
To understand why I believe Judge Kavanaugh’s reasoning is erroneous, it’s important to give a bit of background on Hobby Lobby. The case was a 5–4 decision, with Justice Kennedy filing a separate concurring opinion. Justice Alito’s majority opinion simply assumed (without holding) that the government’s interest in providing the “challenged contraceptive methods” was compelling within the meaning of the Religious Freedom Restoration Act.
But before making that assumption, Justice Alito wrote these vitally important words: RFRA, he said, “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.”
To put it plainly, according to Alito’s reasoning, under RFRA the government would have to establish a compelling governmental interest in facilitating access to contraceptives not just for women generally but as applied to the specific plaintiffs.
Justice Kennedy, in his concurrence, says this:
It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.
It’s important to note that an “assumption” is not a holding. Moreover, this “assumption” doesn’t fully grapple with Alito’s statement that the compelling-interest analysis applies to the “particular claimant whose sincere exercise of religion is being substantially burdened” — in this case, Priests for Life.
Yet Kavanaugh glided past Alito’s language and applied the Kennedy “assumption” to the “employees of these religious organizations.” This application was not compelled by Kennedy’s concurrence, and it ultimately fails as a matter of logic and reason when applied to Priests for Life.
While the government may well deem that contraceptives provide many general benefits (and Kavanaugh outlines those benefits in his opinion), that is not the same thing as holding that those general benefits are sufficiently compelling as applied to the employees of a small religious nonprofit. After all, no one is forced to work for Priests for Life, its employees undertake their duties as part of a religious mission, and it would even be within the rights of Priests for Life to bar its employees from using contraceptives.
Where is the compelling governmental interest in facilitating access to drugs that a religious employer may prohibit as a condition of employment?
Again, I outline these concerns not because I believe Judge Kavanaugh is a “squish” or because I believe his opinions were indefensible. I simply think his reasoning was flawed — and flawed in two critically important, high-profile cases. When deciding between excellent candidates (and Trump’s short list includes only excellent candidates), it’s worth considering — as I said above — whether a nominee is a grand slam or “only” a home run. I’m simply not sure that Kavanaugh is the grand slam.
Supreme Court Rules To Protect Illegal Immigrants That Commit Felonies.
The U.S. Supreme Court struck down a provision of federal law Tuesday that allows the deportation of foreign nationals convicted of certain felonies.
Justice Neil Gorsuch joined with the court’s four liberals to strike down the law, in keeping with longstanding conservative anxieties about sweeping and imprecise grants of power to bureaucrats and regulators.
Justice Elena Kagan wrote the opinion for a five-member majority.
At issue in the case was a provision of the Immigration and Nationality Act (INA) that permits the deportation of any alien convicted of an aggravated felony. The law lists a number of convictions that qualify as “aggravated felonies,” then includes a catchall provision for “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
James Dimaya, a lawful permanent resident, was slated for deportation to the Philippines following two convictions for first-degree burglaries. An immigration judge ordered his removal under the INA’s catchall provision, as first-degree burglary does not appear on the list of qualifying offenses. In turn, Dimaya challenged the provision, arguing it is unconstitutionally vague.
In a 2015 decision called Johnson v. U.S., the high court struck down as unlawfully vague a section of the Armed Career Criminal Act (ACCA) that defined a “violent felony” as, among other things, “conduct that presents a serious potential risk of physical injury to another.” Since then, litigants have brought a number of vagueness challenges to similar provisions of federal law.
The late Justice Antonin Scalia wrote the Johnson decision.
Dimaya argued the catchall section of the INA was substantially similar to the statute the court overturned in Johnson. The 9th U.S. Circuit Court of Appeals agreed, prompting the U.S. Department of Justice’s (DOJ) appeal to the Supreme Court. The DOJ argued the 9th Circuit’s review of the statute was excessive, since civil laws are only considered vague if they are “unintelligible.” Deportation proceedings are civil, not criminal matters.
In her opinion for the court, Kagan rejected that argument, finding the grave nature of deportation warrants heavy judicial scrutiny. She then explained the INA’s catchall provision has precisely the same elements as the unconstitutionally vague section of the ACCA, minor linguistic differences notwithstanding.
“Johnson is a straightforward decision, with equally straightforward application here,” she wrote, elsewhere noting the statute “invited arbitrary enforcement, and failed to provide fair notice.”
Gorsuch wrote a separate opinion concurring in the judgment, in which he argued vagueness challenges to civil laws should be treated as seriously as challenges to criminal laws. Many civil penalties — and not just deportation — are in his view so sweeping that courts should police aggressively for vagueness, and abandon the “unintelligible” standard currently in use.
“Grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions,” he wrote. Such sanctions include “confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely.”
His opinion largely tracks the growing distrust in conservative legal circles of draconian penalties assessed through administrative processes, and is part of a growing campaign to challenge economic regulations on vagueness grounds.
Chief Justice John Roberts wrote the primary dissent, joined by Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.
The Justice Department said Congress should quickly amend the INA to ensure a wider range of criminal convictions qualify for deportation.
“We call on Congress to close criminal alien loopholes to ensure that criminal aliens who commit those crimes—for example, burglary in many states, drug trafficking in Florida, and even sexual abuse of a minor in New Jersey—are not able to avoid the consequences that should come with breaking our nation’s laws,” Justice Department spokesman Devin O’Malley said after the ruling.
Supreme Court allows full enforcement of Trump travel ban
WASHINGTON (AP) — The Supreme Court on Monday allowed the Trump administration to fully enforce a ban on travel to the United States by residents of six mostly Muslim countries.
This is not a final ruling on the travel ban: Challenges to the policy are winding through the federal courts, and the justices themselves ultimately are expected to rule on its legality.
But the action indicates that the high court might eventually approve the latest version of the ban, announced by President Donald Trump in September. Lower courts have continued to find problems with the policy.
White House spokesman Hogan Gidley said the White House is “not surprised by today’s Supreme Court decision permitting immediate enforcement of the President’s proclamation limiting travel from countries presenting heightened risks of terrorism.”
Opponents of this and previous versions of the ban say they show a bias against Muslims. They say that was reinforced most recently by Trump’s retweets of anti-Muslim videos.
“President Trump’s anti-Muslim prejudice is no secret. He has repeatedly confirmed it, including just last week on Twitter. It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims,” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project. The ACLU is representing some opponents of the ban.
Just two justices, Ruth Bader Ginsburg and Sonia Sotomayor, noted their disagreement with court orders allowing the latest policy to take full effect.
The new policy is not expected to cause the chaos that ensued at airports when Trump rolled out his first ban without warning in January.
The ban applies to travelers from Chad, Iran, Libya, Somalia, Syria and Yemen. Lower courts had said people from those nations with a claim of a “bona fide” relationship with someone in the United States could not be kept out of the country. Grandparents, cousins and other relatives were among those courts said could not be excluded.
The courts were borrowing language the Supreme Court itself came up with last summer to allow partial enforcement of an earlier version of the ban.
Now, those relationships will no longer provide a blanket exemption from the ban, although visa officials can make exceptions on a case-by-case basis.
The justices offered no explanation for their order, but the administration had said that blocking the full ban was causing “irreparable harm” because the policy is based on legitimate national security and foreign policy concerns.
In lawsuits filed in Hawaii and Maryland, federal courts said the updated travel ban violated federal immigration law. The travel policy also applies to travelers from North Korea and to some Venezuelan government officials and their families, but the lawsuits did not challenge those restrictions. Also unaffected are refugees. A temporary ban on refugees expired in October.
All the rulings so far have been on a preliminary basis. The San Francisco-based 9th U.S. Circuit Court of Appeals and the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, will be holding arguments on the legality of the ban this week.
David Levine, a University of California Hastings law school professor, said that by allowing the ban to take effect just days before the appeals court arguments, the justices were signaling their view.
“I think it’s tipping the hand of the Supreme Court,” Levine said. “It suggests that from their understanding, the government is more likely to prevail on the merits than we might have thought.”
Both appeals courts are dealing with the issue on an accelerated basis, and the Supreme Court noted it expects those courts to reach decisions “with appropriate dispatch.”
Quick resolution by appellate courts would allow the Supreme Court to hear and decide the issue this term, by the end of June.
Washington (CNN) The Supreme Court will take up one of the most momentous cases of the term on Tuesday as it considers arguments from a Colorado baker who refused to make a cake to celebrate a same-sex couple’s marriage because he believes that God designed marriage to be between a man and a woman.
The case pits the religious liberty claims of Jack Phillips, who owns Masterpiece Cakeshop, against the couple, David Mullins and Charlie Craig, who say Phillips’ actions amount to discrimination.
Some spectators and place holders began waiting in line last Friday to secure one of the rare seats open to the public in the majestic court room.
LGBT rights advocates fear that if the Supreme Court ultimately sides with Phillips, it will diminish its landmark opinion from two years ago that cleared the way for same-sex marriage nationwide. Both sides agree that a ruling in favor of Phillips would also open the door to claims from others who engage in professional services — florists, for example — to claim that their religious liberty exempts them from public accommodation laws applicable to other businesses.
It was back in 1993 that Phillips opened the bakery, knowing at the outset that there would be certain cakes he would decline to make in order to abide by his religious beliefs. “I didn’t want to use my artistic talents to create something that went against my Christian faith,” he said in an interview, noting that he has also declined to make cakes to celebrate Halloween.
Flash forward to 2012, when same-sex marriage was not yet legal in Colorado, but two men walked into the bakery.
“The conversation was fairly short,” Philips remembered. “I went over and greeted them. We sat down at the desk where I had my wedding books open.”
The men told Phillips they wanted a cake to celebrate their planned wedding, which would be performed in another state. Phillips said he knew right away that he couldn’t create the product they were looking for without violating his faith.
“The Bible says, ‘In the beginning there was male and female,'” Phillips said. He offered to make any other baked goods for the men.
“At which point they both stormed out and left,” he said.
The couple filed a complaint with the Colorado Civil Rights Commission, which ruled in their favor, citing a state anti-discrimination law. Phillips took his case to the Colorado Court of Appeals, arguing that requiring him to provide a wedding cake for the couple violated his constitutional right to freedom of speech and free exercise of religion. The court held that the state anti-discrimination law was neutral and generally applicable and did not compel Masterpiece to “support or endorse any particular religious view.” It simply prohibited Phillips from discriminating against potential customers on account of their sexual orientation.
Phillips then took his case to the Supreme Court and the justices agreed to take it up after mulling it for several weeks.
In court papers, Kristen K. Waggoner, a lawyer from the conservative Alliance Defending Freedom who is representing Phillips, argued that the First Amendment guarantees him the right to decline to make wedding cakes that celebrate marriages that are in conflict with his religious beliefs. She said that Phillips is protected by two parts of the First Amendment: its protections of religious exercise and free speech. While she argued that the free exercise clause forbids the commission from targeting Phillips “and like-minded believers for punishment,” she reserved the bulk of her brief for the free speech clause, perhaps targeting potential swing vote Justice Anthony Kennedy, who has at times shown an expansive view of free speech.
Waggoner argued that a person viewing one of Phillips’ custom wedding cakes — his “artistic expression” — would “understand that it celebrates and expresses support for the couple’s marriage.” She said the Supreme Court’s compelled speech doctrine “forbids the commission from demanding that artists design custom expression that conveys ideas they deem objectionable.”
In the interview, Phillips said, “I feel I’m being compelled to create artwork for an event — an inherently religious event — that goes against my faith, and I’m being compelled to do so under penalty of jail time and fines.”
Not surprisingly, Mullins and Craig see the case through an entirely different lens: discrimination.
“This case is about more than us, and it’s not about cakes,” Mullins said in an interview. “It’s about the right of gay people to receive equal service.”
“This isn’t about artistic expression,” said Craig. “I don’t feel like we asked for a piece of art, or for him to make a statement, we simply asked him for a cake, and he denied that to us simply because of who we are.”
The couple is being represented in court by the American Civil Liberties Union.
“In essence, the bakery seeks a constitutional right to hang a sign in its shop window proclaiming, ‘Wedding Cakes for Heterosexuals Only,'” the ACLU’s David D. Cole wrote in court briefs.
Cole said that whether a cake is an artistic expression is not at issue. “The question, rather, is whether the Constitution grants businesses open to the public the right to violate laws against discrimination in the commercial marketplace if the business happens to sell an artistic product.” The answer, Cole contends, is “no.”
Twenty other states and the District of Columbia likewise expressly prohibit places of public accommodation from discriminating on the basis of sexual orientation, according to the National Conference of State Legislatures.
The Trump administration sides with Phillips in the case, arguing that it falls “within the small set of applications of content-neutral laws that merit heightened scrutiny” from the courts. “A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian,” Solicitor General Noel Francisco argued. “Accordingly, the government may not enact content-based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”
But the government lawyers did draw a line when it comes to race, arguing that laws targeting race-based discrimination may survive heightened First Amendment scrutiny in part because racial bias “is a familiar and recurring evil that poses unique historical, constitutional and institutional concerns.”
Supreme Court Expedites Trump’s Petition on Executive Order Case
WASHINGTON, D.C.—The Supreme Court took the rare step on Friday of expediting consideration of a major case, rapidly accelerating the schedule for reviewing the Fourth Circuit’s blocking of President Donald Trump’s travel ban executive order.
President Trump issued Executive Order 13780 (EO) on March 6, Section 2(c) of which temporarily restricted travel from six Muslim-majority countries associated with terrorism while the United States developed new vetting procedures to keep the nation safe.
Immigration activists sued, along with several immigrants and their families. A liberal federal district judge in Maryland granted a preliminary injunction blocking Section 2(c) of the EO. The U.S. Court of Appeals for the Fourth Circuit then affirmed the trial court’s injunction in a 10-3 decision, ruling that the EO violated the Constitution’s Establishment Clause, and taking the almost unheard-of step of all the court’s judges hearing the case, instead of sending it to a three-judge panel.
The U.S. Department of Justice (DOJ) filed a petition for review at the Supreme Court on Thursday. Under the Court’s rules, a response from the plaintiffs would be due July 3. By that time the Court would be on recess for the summer, meaning that the justices would vote at the Court’s annual pre-Term conference, which will take place on September 25, on whether to take the case. That would typically mean hearing arguments in December or January, with a final decision coming down in early or mid-2018.
Acting Solicitor General Jeff Wall at DOJ also asked Chief Justice John Roberts (who supervises the Fourth Circuit) to stay the appellate court’s decision until the justices can decide the matter.
On Friday, the Supreme Court rapidly expedited everything. The ACLU—which represents the plaintiffs—have been ordered to file their response by 3:00 p.m. on Monday, June 12. The ACLU lawyers must also respond to DOJ’s application for a stay by that time.
The Court could conceivably then vote immediately on whether to take the case, or anytime shortly thereafter. Under a normal briefing schedule, the Court would then hear arguments in October, and issue a decision by the end of 2017.
It’s also possible that the Court could accelerate briefing on an emergency basis, then hold arguments over the summer, or possibly even in June before recessing for the summer. The Court could make clear by the week of June 12 which course it is pursuing.
Critical Mass: Gorsuch Nom. Forces Historic Change to Senate Rules
Senate Republicans used the “constitutional option” to change longstanding cloture rules around 12:30pm Thursday, clearing the way for Judge Neil Gorsuch to receive a vote of the full Senate on his confirmation to the Supreme Court.
Republicans resorted to the party-line 52-48 vote after weeks of wrangling over Gorsuch’s nomination in which Senate Democrats threatened the first partisan filibuster of a Supreme Court nominee in American history. After the Democrats assembled the forty-one votes needed to prevent the end of debate under current rules, the constitutional option allowing cloture on a simple majority became the only remaining path to placing Gorsuch on the Court.
Vice-President Mike Pence, who would have been needed to break a tie should any two Republicans have voted to maintain the 60-vote cloture rule, was not present for the vote, indicating Republican confidence their entire caucus would agree to the change.
Senate Majority Leader Mitch McConnell (R-KY) moved for a point of order after his first attempt to invoke cloture failed with only 55 votes. From the podium, he cited the need to “restore Senate norms” in light of the Democrats’ “unprecedented partisan filibuster” of a Supreme Court nominee.
McConnell invoked the precedent of Senate Democrats’ own change to same simple majority cloture rule for all presidential nominees but those to the Supreme Court in 2013 in calling for an override of the Senate chair’s determination sixty votes were needed for cloture. That appeal passed on a party-line 52-48 vote.
Thursday’s historic move harmonized Senate rules, removing the possibility of minority filibusters of Supreme Court nominees. Given the reluctance, in the past, for either party to filibuster a Supreme Court nominee with majority support, the constitutional option restored, as a practical matter, traditional Senate custom in this area.
A successful cloture vote quickly followed the rule change. The 55-45 vote began a thirty hour countdown to a vote of the full Senate. Judge Gorsuch is, therefore, slated for the final vote on his confirmation no later than seven o’clock Friday evening. All 52 Republicans and three Democrats are expected to vote for his confirmation, allowing him to replace Antonin Scalia as Associate Justice of the Supreme Court of the United States.
