A Filibuster Likely Won't Block Neil Gorsuch

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As promised, on Tuesday night at 8 p.m., President Donald Trump announced Neil Gorsuch was his Supreme Court nominee. Democrats have already vowed to fight hard against Trump's Supreme Court nomination, even before the nominee was announced. Democratic leaders pointed to the unprecedented action from the GOP last year to block any hearing on Obama's nominee, Merrick Garland, for the same seat for 293 days.

Democrats may be able to fight and filibuster. (Recap in civics: in the Senate, you need 60 senators to shut down debate, so as long as you have at least 40 wanting to keep debate open, it will remain open). However, they probably don't have the votes to permanently filibuster unless at least a few Republicans join them. Also, Ted Cruz has already threatened the "nuclear option," voting out the 60-vote threshold.

For a justice to go down, there usually has to be something strikingly out-of-the-ordinary about them. Aside from Garland, the Obama appointee that Republicans refused to even consider, the most recent nominee who was taken down was Harriet Miers, She was an attempted appointee by President George W. Bush that was anything but ordinary.

Miers was a Texas attorney, a personal friend of Bush, and, at the time of nomination, working as White House Counsel — basically the in-house lawyer for the White House. Unlike most recent Supreme Court nominees, Miers had no experience as a judge. She had worked as a corporate litigator, and even as commissioner of the Texas lottery, but had little experience with the high-level constitutional issues that end up on the Supreme Court's docket.

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Senate Republicans were skittish about a nominee so green, especially without knowing as much as they hoped about her history on no-compromise issues like abortion and gun rights. A frequent fear among conservatives about recent court nominees would be a repeat of David Souter, a justice nominated by President George H.W. Bush without a well-established ideological background. Once Souter was on the court, he ended up siding more with the liberal justices than the conservatives.

The Senate provide Miers with a questionnaire on her views, and they were sorely disappointed by her answers. It became hard to tell which was a bigger liability — her lack of experience and unpreparedness, or the worry among conservatives that she would let them down. It reached the point where conservative groups ran ads against her, and liberal California Senator Diane Feinstein came to her defense.

Less than a month after Miers was nominated, Bush withdrew the nomination. He eventually replaced her with Samuel Alito, who was confirmed and has been a reliable and staunch conservative on the court since. Trump, in choosing from such well-credentialed conservatives, looks like he learned from Bush's mistake.