On January 31, 2017, soon after taking office, Republican President Donald Trump nominated Neil Gorsuch for Associate Justice of the Supreme Court of the United States to succeed Antonin Scalia, who had died almost one year earlier. When nominated, Gorsuch was a sitting judge on the United States Court of Appeals for the Tenth Circuit, a position to which he had been appointed by President George W. Bush in 2006. President Barack Obama, a Democrat, had nominated Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to succeed Scalia on March 16, 2016, but the Republican-controlled U.S. Senate did not vote on the nomination. Republican majority leader Mitch McConnell argued that, as the presidential election cycle had already commenced, the appointment of the next justice had become a political issue to be decided by voters. The Senate Judiciary Committee therefore refused to consider Garland's nomination, keeping the vacancy open through the end of Obama's presidency on January 20, 2017.
Democratic Senators launched a filibuster against Gorsuch's nomination to block his confirmation. However, Republicans invoked the "nuclear option", eliminating the filibuster with respect to Supreme Court nominees. The Senate ultimately confirmed Gorsuch's nomination to the Supreme Court by a 54–45 vote on April 7, 2017 (all Republicans and three Democrats voted in his favor). Ten days after his confirmation, Gorsuch heard his first case as the 101st associate justice of the Court, in Anthony Perry vs. Merit Systems Protection Board.
Background On February 13, 2016, Associate Justice of the Supreme Court Antonin Scalia died unexpectedly. His death triggered a protracted political battle that did not end until the Senate confirmed Gorsuch's nomination in April 2017.
Political commentators at the time widely recognized Scalia as one of the most conservative members of the Court, and noted that then-President Barack Obama had an opportunity to name a more liberal replacement, a move that could alter the Court's ideological balance for many years to come. Obama ultimately nominated centrist United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland on March 16, 2016. His confirmation would have given Democratic appointees a majority on the Supreme Court for the first time since the 1970s. However, the Senate had had a Republican majority since 2015, so Garland could only be confirmed by a bipartisan majority.
However, Republican Senate leaders declared that the Senate would not even consider a nomination from the president, citing the fact that the vacancy arose during Obama's final year as president. This was the first time in 150 years that the Senate had refused to hold a confirmation vote on a Senate nominee.In 1866, the nomination of Henry Stanbery for a vacant seat was not voted on, as Congress passed a law abolishing this seat and the next two seats falling vacant. Since then, nominations made before election day were always voted on (unless the President withdrew them), and any candidates nominated between election day and the convening of the new Senate (Matthews, Butler, Harlan II) were re-nominated and then confirmed by the new Congress.
Garland's nomination therefore expired on January 3, 2017 with the end of the 114th Congress, 293 days after it had been submitted to the Senate. As a result of the nomination's defeat, Scalia's seat remained vacant until after Donald Trump's January 20, 2017 presidential inauguration. This was only the 15th time in U.S. Senate history that a Supreme Court nomination had lapsed at the end of a session of Congress. Many Democrats reacted angrily to the Senate's refusal to consider Garland, with Senator Jeff Merkley describing the vacant seat as a "stolen seat". However, Republicans like Senator Chuck Grassley argued that the Senate was within its rights to refuse to consider a nominee until the inauguration of a new president.
Nomination
Potential candidates During the 2016 presidential campaign, while Garland remained before the Senate, Trump released two lists of potential nominees. On May 18, 2016, Trump released a short list of eleven judges for nomination to the Scalia vacancy. In September 2016, Trump released a second list of ten possible nominees, this time including three minorities.
Both lists were assembled by the Federalist Society and The Heritage Foundation. Leonard Leo of the Federalist Society played a major role in the creation of the second list, which included Gorsuch. The Trump administration also considered nominating Brett Kavanaugh and Amy Coney Barrett to the seat, who were later nominated and confirmed after the retirement of Anthony Kennedy in 2018 and the death of Ruth Bader Ginsburg in 2020, respectively.
After winning the presidential election, Trump and White House Counsel Don McGahn interviewed four individuals for the Supreme Court opening, all of whom had appeared on one of the two previously released lists. The four individuals were federal appellate judges Tom Hardiman, Bill Pryor and Neil Gorsuch, as well as federal district judge Amul Thapar, all appointed to the federal bench by President George W. Bush. While Pryor had been seen by many as the early front-runner due to the backing of Attorney General Jeff Sessions, many evangelicals expressed resistance to him, and the final decision ultimately came down to Gorsuch or Hardiman. Hardiman had the support of Trump's sister, Judge Maryanne Trump Barry, but Trump instead chose to nominate Gorsuch.
Announcement President Trump announced the nomination of Gorsuch on January 31, 2017. The nomination was formally received by the Senate on February 1, 2017, and was subsequently referred to the Senate Judiciary Committee. At the time of his nomination, Gorsuch was described as solidly conservative, but likely to be confirmed without much difficulty. Richard Primus of Politico described Gorsuch as "Scalia 2.0" due to ideological similarities, and a report prepared by Lee Epstein, Andrew Martin, and Kevin Quinn predicted that Gorsuch would be a "reliable conservative" similar to Scalia.
According to The Washington Post, Trump considered rescinding Gorsuch's nomination, venting angrily to advisers after Gorsuch was critical of his escalating attacks on the federal judiciary in a private February meeting with Democratic legislators.
Responses to the nomination
Norm Eisen, Special Counsel for Ethics and Government Reform in the White House and Ambassador to the Czech Republic, endorsed Gorsuch. Eisen was a classmate of both Gorsuch and Obama at Harvard Law. Neal Katyal, who served as Acting Solicitor General of the United States during the Obama Administration and law professor at Georgetown University Law Center, endorsed Gorsuch for approval to the Supreme Court and introduced him on the first day of the hearings.
The National Rifle Association, the National Shooting Sports Foundation, the Second Amendment Foundation, and other gun rights groups endorsed Gorsuch, while Americans for Responsible Solutions, the Law Center to Prevent Gun Violence, and other gun control proponents opposed his nomination. House Minority Leader Nancy Pelosi claimed Gorsuch "comes down on the side of felons over gun safety". PolitiFact called her statement misleading and said that Gorsuch's past rulings do not "demonstrate that he thinks more felons should be allowed guns than what is already permitted under the law".
The American Civil Liberties Union raised concerns about Gorsuch's respect for disability rights. The Secular Coalition for America, Freedom from Religion Foundation, and Union for Reform Judaism all voiced concerns with Gorsuch's nomination.
The Judicial Crisis Network enthusiastically rallied behind Gorsuch after running a campaign against Merrick Garland, spending a total of $17 million to these ends.
Judiciary Committee review
Confirmation hearings
Gorsuch's nomination was first considered by the Senate Judiciary Committee, which holds hearings on all federal judicial nominations and decides whether or not to send nominations to the full Senate for a final confirmation vote. In the 115th Congress, the committee consisted of 11 Republicans and 9 Democrats and was led by Republican Chuck Grassley. In preparation for the hearing, the committee requested that the Department of Justice (DOJ) send all documents they had regarding Gorsuch's work in the George W. Bush administration. By the time the hearings commenced, the DOJ had sent the committee over 144,000 pages of documents and, according to a White House spokesman, more than 220,000 pages of documents altogether. Gorsuch's confirmation hearing started on March 20, 2017, and lasted four days.
On the first day of hearings, March 20, senators largely used their opening statements to criticize each other, with Ranking Democrat Dianne Feinstein complaining of the "unprecedented treatment" of Judge Merrick Garland, Democrat Michael Bennet arguing that "two wrongs don't make a right", and Republican Ted Cruz insisting that President Trump's nomination now carried "super-legitimacy". Democratic senators repeatedly criticized Gorsuch for his dissent in Transam Trucking v. Administrative Review Bd., colloquially referred to as the "frozen trucker case", where the Tenth Circuit Court of Appeals had ruled in favor of a truck driver who, after waiting hours for relief, had finally abandoned his unheated truck and trailer in dangerously inclement conditions. Democrat Dick Durbin told Gorsuch that the cold weather described in the facts of the case was "not as cold as your dissent". Durbin also criticized the accuracy of Gorsuch's opinion in Burwell v. Hobby Lobby, where Gorsuch had contended that contraception "destroys a fertilized egg," and that he had held that the Religious Freedom Restoration Act included protection for corporations rather than just individuals.Durbin, Gorsuch spar over Hobby Lobby ruling , Washington Post, Robert Barnes, March 21, 2011. Retrieved April 20, 2019. In his 16-minute opening statement, Gorsuch repeated his belief that a judge who likes all his rulings is "probably a pretty bad judge." He argued that his decisions were based on "the facts at issue in each particular case." He also noted that his extensive record included many examples where he ruled both for and against disadvantaged groups.