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Divisive Gorsuch fight leaves partisan mark on Supreme Court

In this March 21, 2017, file photo, Supreme Court Justice nominee Neil Gorsuch testifies on Capitol Hill in Washington during his confirmation hearing before the Senate Judiciary Committee. (Susan Walsh / Associated Press)
By Greg Stohr Bloomberg

Judge Neil Gorsuch won an intensely political confirmation fight to join a U.S. Supreme Court already struggling to stay above politics.

The Senate’s confirmation of Gorsuch Friday restores the generally conservative majority that existed before Justice Antonin Scalia’s death last year. It could lead to new curbs on union powers and worker lawsuits while bolstering the rights of religious groups.

It could also fuel the perception that the court is largely a tool of the politicians in Congress and the White House. The fight over Gorsuch underscored the intensity of both parties’ efforts to bend the court toward their views — a phenomenon Chief Justice John Roberts lamented just days before Scalia died.

“If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process,” Roberts said in a February 2016 speech in Boston. “And that’s just not how — we don’t work as Democrats or Republicans.”

The Senate voted 54-45 to confirm Gorsuch, who will be sworn in Monday with a private ceremony at the court to be followed by a public oath-taking at the White House.

On Thursday, senators voted along party lines to change the body’s longstanding rules and effectively eliminate the filibuster for Supreme Court nominees. The move means it now takes only 51 votes, not 60, to bring a nominee up for a confirmation vote.

Each side accused the other of pursuing partisan aims. Majority Leader Mitch McConnell said on the Senate floor Friday morning that Gorsuch is undeniably qualified and that Democrats had little justification to have fought him so hard.

“He has sterling credentials, an excellent record and an ideal judicial temperament. He has the independence of mind for fairness,” McConnell said.

Democratic Sen. Dick Durbin of Illinois castigated Republicans for their refusal to consider President Barack Obama’s nomination of Judge Merrick Garland for the seat last year. “Talk about partisanship,” Durbin said Thursday.

By all indications, Gorsuch will fit comfortably within the court’s conservative wing alongside the other four Republican-appointed justices. He interprets the Constitution much as Scalia did, focusing on its words and their original meaning. His strict reading of federal statutes led him as an appeals court judge to reach decisions that Democrats criticized as heartless and Republicans said were legally correct.

He could have an immediate impact. The justices next take the bench on April 17, and one of the first cases he will hear will be a church-state argument the court waited more than a year to hold while awaiting a ninth justice. The issue is whether Missouri violated the Constitution by excluding a church preschool from state funding for new playground surfaces.

When justices are confirmed midway through a term, by tradition they don’t take part in cases that have already been argued unless the other justices are deadlocked. When that happens, the court hears a second argument with the new justice on the bench and available to break the tie.

That was the practice with Samuel Alito in 2006, Clarence Thomas in 1991 and Anthony Kennedy in 1988. In Thomas’ case, he ultimately didn’t get to break the tie in either of two re-argued cases because one or more colleagues switched sides, leaving Thomas in at least partial dissent.

Gorsuch could be the tiebreaker in several cases that seemed to divide the court when they were argued. Those include a dispute over the rights of cities to sue banks under federal housing law for predatory lending and a clash over a Republican-drawn congressional voting map in North Carolina. If the court is split 4-4, the cases could be reargued either this term or next.

He also could prove to be a critical voice on petitions that seek high court review. In the next few weeks, the court could say whether it will consider reviving North Carolina’s voter-ID law or striking down gun-carrying restrictions in parts of California.

Each of those cases could split the court along ideological lines and deepen what is already an unprecedented divide. For the first time in history, the court has a sustained ideological split that corresponds with the party of the appointing president, with its four Democratic appointees being the most liberal justices.

That reality helps explain why both parties went as far as they did in the 14-month battle over the Scalia vacancy.

“What the fight over Gorsuch exposes is that the court is not a purely legal body,” said Paul M. Collins Jr., director of legal studies at the University of Massachusetts Amherst. “Though the public is no doubt aware of this, the constant portrayal of the court in political terms that is currently coming from Washington serves to amplify this.”

Public approval of the Supreme Court has fallen in recent years along with the ratings for other institutions. In a Gallup poll in September, 45 percent of people responding approved of the court, compared with 47 percent disapproving. In 2000, 62 percent approved and 29 percent disapproved.

Since that 2000 poll, the court has resolved the 2000 presidential election deadlock, upheld Obamacare, allowed more campaign spending, voided part of the Voting Rights Act and legalized gay marriage. Each case highlighted the court’s importance, opened it to criticism and thrust it into the political limelight.

“Over the course of U.S. history, when people broadly agree with the court’s decisions they tend to see the court as an impartial adjudicator,” said Michael Dorf, a constitutional law professor at Cornell Law School, said in an email. “When they disagree, they tend to view the court as political (and wrong).”

Now the court will be operating amid not only the fallout of the Gorsuch battle but also the likelihood that more confirmation fights may be coming soon. Three justices — Kennedy, Stephen Breyer and Ruth Bader Ginsburg — are at least 78. Retirement speculation has focused on Kennedy, a Republican appointee who was slower than usual to hire law clerks for the term that starts in October.

“I doubt the confirmation fight will have any effect on the court’s internal affairs,” said Michael McConnell, a former federal appeals court judge who now teaches at Stanford Law School. “The justices know that politics is a nasty business. It might well affect public perception of the court.”

But the Gorsuch fight may alter the public’s perception of the court, McConnell says.

“When the public hears senators, members of the press, and other seeming authorities talk about judges and justices in a nakedly political way, they may leap to the conclusion that the courts are as political as the conversation about them,” he said.