Gorsuch Vote Set for Friday as Senate Ends Filibusters on High Court Nominees

By Mark Walsh — April 06, 2017 5 min read
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The U.S. Senate on Thursday made a historic change in its rules to require a simple majority vote for Supreme Court nominations, setting up a vote on Friday when Neil M. Gorsuch will almost certainly be confirmed to succeed the late Justice Antonin Scalia.

Republicans failed to secure the necessary 60 votes to end debate on the Gorsuch nomination—that vote was 55 for, 45 against—and quickly moved to invoke the “nuclear option,” a rules change allowing the majority vote. That change passed 52 to 48 along party lines.

The dramatic procedural maneuvering led to the beginning of a final 30 hours of debate on President Donald Trump’s Supreme Court nominee, which would put a final confirmation vote on Gorsuch at about 7 p.m. Friday. [UPDATE Friday 9 a.m.: Senate leaders have decided to move up the vote to about 11:45 a.m. on Friday.]

“This will be the first and last partisan filibuster of the Supreme Court,” Senate Majority Leader Mitch McConnell, R-Ky., said on the Senate floor before the cloture vote seeking to end debate.

The minority leader, Sen. Charles Schumer, D-N.Y., said, “In 20 or 30 or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court, a day when we irrevocably moved further away from the principles our founders intended for these institutions: principles of bipartisanship, moderation and consensus.”

Luke P. Case Cited

During two days of floor debate leading up to Thursday’s showdown, Senate Democrats repeatedly highlighted the two key education matters that emerged from Gorsuch’s confirmation hearing: his actions in a special education case and his perceived reluctance to declare that the Supreme Court’s landmark 1954 desegregation decision was correctly decided.

Sen. Patty Murray of Washington state, the ranking Democrat on the Senate education committee, said on the floor Tuesday that she was “deeply concerned about the potential effect [of Gorsuch] on children and students with disabilities.”

“In a number of cases, Judge Gorsuch ruled in ways that made it more difficult for them to receive the support and services they not only deserve but are entitled to under the Individuals With Disabilities Education Act—our nation’s special education law,” Murray said. “It is notable that while Judge Gorsuch was testifying—actually, while he was testifying before the Judiciary Committee two weeks ago—the Supreme Court unanimously rejected his prior ruling in a case involving the rights of a student with disabilities to receive a meaningful education.”

That was a reference to a 2008 opinion by Gorsuch for the U.S. Court of Appeals for the 10th Circuit, in Denver, that under the IDEA schools must provide a “merely more than de minimis” education program to students with a disability.

In that decision, Thompson R2-J School District v. Luke P., Gorsuch had added the word “merely” to the phrase “more than de minimis,” which had come from other cases.

In its March 22 decision in Endrew F. v. Douglas County School District, the Supreme Court rejected the standard Gorsuch had formulated in the Luke P. case, ruling unanimously that the IDEA requires a higher standard. The Democrats on the Judiciary Committee questioned Gorsuch about his earlier ruling within hours of the Supreme Court ruling.

“It wasn’t one or two Justices rejecting Gorsuch’s writing, his interpretation of the law—basically, his decision to ignore the law, which is what he did in his decision,” said Sen. Jeff Merkley, D-Ore., during his more than 15 hours on the Senate floor speaking against the nomination on Tuesday and Wednesday. “They ruled 8 to 0. They basically kicked that decision clear out of the field of common sense or a rational interpretation of what the IDEA Act says.”

Gorsuch’s Answers on Brown

Some Democrats also criticized Gorsuch over exchanges during his hearing about the landmark Brown v. Board of Education of Topeka, Kan.

“Only after considerable prodding did Judge Gorsuch eventually agree that the decision in Brown v. Board of Education, which did away with the doctrine of separate but equal and desegregated schools across our nation, was correct,” said Sen. Edward Markey, D-Mass. “Having to pry out of Judge Gorsuch that concession does not inspire confidence in him.”

Sen. Cory Booker, D-N.J., cited an article Gorsuch had written criticizing liberals for being “addicted to the courtroom” for their policy goals, including in education.

“I wonder what Oliver Brown, plaintiff in the seminal case of Brown v. Board of Education would say to Judge Gorsuch?” Booker said. “Was he ‘addicted’ to the courtroom to advance his social agenda? Or was the courtroom his avenue to justice against profound oppression?”

Republicans had not yet defended Gorsuch on the special education issue on the Senate floor, as they had in the Judiciary Committee. But Sen. Charles Grassley, R-Iowa, who led the Gorsuch hearing as chairman of the Judiciary Committee, took to Gorsuch’s defense on the Brown issue.

“My colleagues said that the judge should have announced that he agreed with the ruling in Brown v. Board of Education but didn’t offer enough information about this opinion in an appropriate discussion of precedent,” Grassley said on the floor. “I will quote our nominee. He said this: ‘Senator, Brown v. Board of Education corrected an erroneous decision, a badly erroneous decision, and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson, where he correctly identified that separate to advantage one race can never be equal.’ ... So the judge spoke about precedent very appropriately. He answered our questions in a manner consistent with his obligations and with past nominees.”

PHOTO: Senate Majority Leader Mitch McConnell, R-Ky., signals a thumbs-up as he leaves the Senate chamber on April 6, after he led the GOP majority to change Senate rules and lower the vote threshold for Supreme Court nominees from 60 votes to a simple majority in order to advance Neil Gorsuch to a confirmation vote.
—J. Scott Applewhite/AP

A version of this news article first appeared in The School Law Blog.