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What Should Democrats Do About Gorsuch?

In this week’s politics chat, we discuss the politics of President Trump’s pick for the Supreme Court, Neil Gorsuch.

micah (Micah Cohen, politics editor): Welcome! This is a special post-Supreme Court pick chat, so we’ve invited our resident SCOTUS expert, Oliver Roeder, to join us.

On the agenda for today:

  1. General impressions on the politics of Trump’s pick.
  2. What’s the deal with Gorsuch? Mainly: How would he affect the court’s ideological makeup? What issues could he tip the balance on?
  3. What are his confirmation chances? How hard will Democrats fight to block him?

Everyone ready?

clare.malone (Clare Malone, senior political writer): Are we going to talk about “the handshake”?


Maybe Trump was expecting to bring it in for the always manly handshake-to-hug?

harry (Harry Enten, senior political writer): Better to get an awkward handshake than no handshake at all, like Judge Hardiman got.

clare.malone: Well, Gorsuch handled the hand assault with aplomb. As a couple, they were not into the hug genre, I have to say. Respect. Hugs are overused in modern America.

micah: OK, that might be a record for one of these chat’s being derailed away from substance.

clare.malone: Sorry I’m not sorry. I have real thoughts: Gorsuch is a continuation of Trump/Stephen Bannon’s two-week “wow ’em” show for the base.

harry: Gorsuch is a great pick for conservatives. He’s also well-qualified (we’ll get into that a little later), so you can’t say this was a purely political pick.

ollie (Oliver Roeder, senior writer): One way to quantify the ideology of a federal judge like Gorsuch, as compared to those sitting on the Supreme Court, is something called “judicial common space” scores. This is essentially a mashup of justice voting records, the ideology of the nominating president, and the ideology of the judge’s home-state senators. By that measure, Gorsuch falls somewhere to the right of where Justice Antonin Scalia, who died last year, sat, ideologically.


micah: Ollie, you’re not really supposed to bring actual data into these chats.

ollie: Sorry not sorry.

clare.malone: Trump wants movement conservatives to feel taken care of quickly, to feel that there is real change from the Obama era — they are giving them the impression that the Trump era is comprehensively and quickly moving to change American life for the better. I think it’s a smart impressionistic move — make the people feel the feels.

natesilver (Nate Silver, editor in chief): I guess I think this is very much a Politics 101 pick. Straight down the fairway. Exactly how you’re supposed to play it. Pick someone who fits your base’s ideological priors but who is well-qualified enough that he isn’t likely to create extra vetting problems. Caveat here being that Gorsuch hasn’t been exposed to the vetting wolves yet, so maybe this will all look foolish in a week.

clare.malone: And young.

natesilver: Yeah.

ollie: The youngest nominee since Thomas.

micah: So why do we automatically say he is “well-qualified”? I’ve seen that everywhere — including on our site.

clare.malone: Because America is classist, and we think that Ivy League = smart.

*Often Ivy League does mean smart.

natesilver: Ivy league shmivy league

ollie: One thing that’s underreported, Clare, is that he attended the University of Colorado at Denver for a summer. ¯\_(ツ)_/¯

clare.malone: But, like, have you met the Harvard legacy admit crowd? Oof. I wouldn’t let them touch my stock trades with a 10-foot pole.

micah: I’m super freaking smart, and I didn’t go to an Ivy League school. TULANE UNIVERSITY FOR LIFE!

harry: I think we say well-qualified because (i) the American Bar Association gave him that seal — “unanimously well qualified” — when he was nominated for his current job; (ii) he draws comparisons to Scalia, who was widely regarded as very well-qualified; and (iii) check out this op-ed from former President Barack Obama’s solicitor general.

clare.malone: He’s also a Marshall scholar. So. That’s impressive.

micah: OK, fine … he’s well-qualified.

clare.malone: And people say he’s an engaging writer.

harry: Elena Kagan said he is a very good writer! And that’s what makes the politics so wonderful from Trump’s point of view: Many on the left in judicial circles like the guy, and conservatives like the record.

natesilver: Hmm. You have to justify that “many on the left” claim, Harry. So far, it’s one dude. It seems like people on the left don’t have a lot of great arguments against his credentials. But that’s different than saying they celebrate his jurisprudence, or whatnot.

harry: I think you’re reading too much into my words. They like the guy for his intellect.

clare.malone: He seems “not scary” to liberals, I think is what Harry might be getting at — in the Trump era, when a nominee seems not Mike Flynn-esque, they’re going to take a chance and say, “Maybe he’ll turn out less conservative on things than we think he will?”

ollie: SCOTUSblog put together a list of reactions to the nomination. Not exactly a comprehensive gauge of reaction, but the “against the nomination” list is a bit longer.

natesilver: I think the Democratic base is likely to regard him as being very scary within a week or so. He has a very conservative reading of the Constitution, which they won’t like.

harry: Are we getting into confirmation chances?

micah: Not yet.

natesilver: No, but I think people should be aware that credentials matter to elites, more so than to rank-and-file voters. Which doesn’t mean they aren’t important.

micah: I think that’s probably true, Nate. But I think Clare’s right that for Democratic elites (who will be voting on the nominee), it matters that Gorusch is a “normal” conservative.

harry: With a record like Scalia’s, I don’t suspect there’ll be much support on the left for Gorsuch. Then again, given the polarized times, I wouldn’t expect most liberals to vote for Trump’s nominee regardless. The question ultimately is how many Democrats vote to end a filibuster. And that’s where I think credentials do play a bigger role. Will they let this guy through? Or do they think he’s a lunatic? Is the fight here and now? Or is it worth torching someone else down the line? And I think credentials do play a role in that.

clare.malone: There is also the idea of saltiness over the Merrick Garland process, right? How much will that play in?

micah: A lot? That’s what some reporting suggests. Other reports suggest that Democrats may back off and save the real fight for a pick that would tip the ideological balance.

natesilver: A lot of this is optics instead of substance, and I wonder if we should be looking past the optics more.

micah: Hold that thought. One last question before we move to issues: There’s a theory (which I subscribe to) that Trump doesn’t win the 2016 election if conservatives aren’t thinking about this open Supreme Court seat. Basically, the theory holds that a lot of true-blue (red) conservatives held their nose and voted for Trump despite his apostasies because he promised them a justice they would love by releasing that list of names. So the release of the list looks like a genius move politically, as does — whatever you think of the ethics — refusing to hold hearings for Garland.

clare.malone: Hm.

natesilver: Because the election was so close, a lot of things could have made enough of a difference to sway the result. But I don’t think this is an especially good candidate.

clare.malone: I think people on the right certainly used the Supreme Court as a talking point, but it was a general “our team should win” thing. With all that’s tied up in that — and certainly legal/cultural changes through court decisions is part of that message, but so is a lot of other stuff.

natesilver: For one thing, the Supreme Court issue was not very salient on the campaign trail. And in some ways, that worked well for Republicans because what they were doing to Garland could have gotten the Democratic base pretty riled up if people had paid more attention to it.

harry: Trump did win the vote of those who said the Supreme Court was the “most important factor” in the exit polls, but that probably is just a stand-in for conservative principles. And Trump was more conservative than Clinton.

clare.malone: What did we say about no data, Harry?

natesilver: I don’t like that exit poll question, though — I need to do a whole rant about this — because it artificially forces a choice between an arbitrary number of choices. For example, you can pick “Supreme Court” or “economy” but not both.

harry: Of course.

natesilver: Also, pre-election polls showed that more voters thought that Clinton could do a better job of making Supreme Court picks.

harry: There’s a difference between folks thinking Clinton would be better at picking a court member and those people thinking it was important.

natesilver: I’m just saying, as an editor — I obviously followed the 2016 campaign pretty closely. And when the Scalia news broke, I thought “WOW, this is going to be a huge deal and one of the biggest issues of the campaign.” And it turned out not to be a big issue at all. It was swamped by too many other, more spectacular things. I think anyone who says it was had better bring a lot of data to prove it, because otherwise that sounds like revisionist history.

harry: Nate brings out the editor card.

natesilver: I get one editor card for every time I actually edit a story — that’s how it works.

micah: So now you don’t have any left.

OK, let’s move to ideology/issues. As Ollie said earlier, Gorsuch clocks in as just to the right of Scalia, who was pretty conservative. So Gorusch would restore the 5-4 conservative advantage that was in place before Scalia’s death. But let’s go a little deeper. Does replacing Scalia with Gorsuch have other effects on the court’s ideological makeup/functioning?

ollie: There’s an interesting new social dynamic, if nothing else: Gorsuch clerked for Justice Anthony Kennedy. It’s the first time a justice and his former clerk have sat on the bench together.

micah: But he’ll presumably have a bigger effect on the court’s balance on some issues but not others, right? Like, he doesn’t really alter the math on abortion, but does on voting rights, no?

clare.malone: We don’t know what he’ll do on abortion yet, correct? Clues, but nothing concrete.

natesilver: We also don’t know if Harry will drink a Diet A&W Cream Soda today.

ollie: The biggest clue cited on his abortion views seems to be a book he wrote about assisted suicide. He argued passionately against it, from “the idea that human life is intrinsically valuable.”

harry: We don’t have time to get too nerdy here, but these scores we use to figure out how folks are going to vote have margins of error. It’s safest to say that Gorsuch is quite conservative, but he could theoretically end up fairly close to Chief Justice John Roberts on the bench or, alternatively, nearer Clarence Thomas. Both conservative, but different types. He probably won’t end up near the swing vote, Kennedy, though it’s possible.

clare.malone: I think the voting rights thing is interesting, Micah. We’ve talked about it as possibly getting an elevated platform if Obama and former Attorney General Eric Holder decide to really dig into the issue.

micah: There was a strict voter ID law in Texas that was ruled to be discriminatory by a federal appeals court. The Supreme Court just declined to hear that case (locked 4-4 as it is), but the issue will presumably crop back up. In fact, Roberts seemingly invited it to.

natesilver: In terms of assessing his conservatism, it’s probably worth noting that Trump, in theory, has more information than we do, in terms of having had an opportunity to privately quiz him about his views, etc.

clare.malone: Of course. And people like this who have an inkling from a young age that they might someday be “important” tend to be circumspect about how they present their views in public on things they know could be inflammatory.

natesilver: Clare, I think people like that — “I’m not going to smoke this joint because I might be chief justice one day!” — should be summarily disqualified from life.

harry: Also, the tea leaves are sometimes misleading:

I hear that Kennedy quote and think this guy’s going to be pretty anti-abortion. Turns out, not that much.

ollie: Many of Gorsuch’s positions that are solidly “on the record” involve religion. He ruled with Hobby Lobby, which objected to providing contraception, in that Obamacare case, and he’s opposed to banning religious expression (like the Ten Commandments) from public spaces. He’s been no friend to death penalty defendants and has endorsed Second Amendment rights. Other than that, there isn’t a long list of Gorsuch opinions on “marquee” issues.

clare.malone: But we assume that for something like money in politics, he would take the “Citizens United” view of things? Extrapolating that he believes corporations can express religious beliefs?

In other words, we can go down the garden path a bit with these things, or we would if we were court watchers who used the royal we.

ollie: Are we not?

clare.malone: We are not.

natesilver: Are there any issues on which he has heterodox views, Ollie? It seems that if he’s a down-the-line conservative/Scalia-ist/textualist on the issues we know about, that reduces the error rate for issues we don’t know about. Whereas if he’s all over the place but averages out to be Scalia, that’s a little different.

ollie: One possible area of disagreement with Scalia, for example, is Chevron deference — the idea that courts should defer to government agencies’ interpretations of statutes. Scalia defended it; Gorsuch has criticized it.

But other than that, as our headline last night read, “Scalia clone” seems fairly apt.

FiveThirtyEight: Nate Silver on Trump’s immigration ban

micah: OK, last subject — What are Gorsuch’s chances of being confirmed?

So basically:

  1. What are the chances the Democrats filibuster?
  2. What are the chances that eight Democrats side with Republicans on cloture to end a filibuster?
  3. What are the chances Sen. Majority Leader Mitch McConnell nukes the filibuster on Supreme Court nominations?

harry: So I was running some numbers on this last night and this morning. Gorsuch is not the type of candidate who will get many Democratic “yea” votes. The more realistic question is whether there are enough Democrats who vote “yea” on cloture to kill a filibuster but then vote “no” on Gorsuch.

micah: Note for the reader: Ollie had to run, so if you were reading this chat just for Ollie, you can close this tab now.

clare.malone: I think it turns into a PR problem at some point here, right? I.e., the Democrats don’t want to appear too obstructionist. But they also want to convey a certain message of dissent.

natesilver: Democrats will be under huge pressure from the base to filibuster the pick. Obstructionism sounds like sort of an archaic concern, given the politics-ain’t-beanbag era that we’re in right now.

micah: Gorsuch doesn’t seem likely to end up with high public unfavorable ratings — unless something comes out in the vetting, right? And Harry has told us that public approval of the nominee plays some role in the confirmation vote.

clare.malone: The politics of vindictiveness it is!

harry: Right, but my research indicates that when you are a very conservative or very liberal candidate, your upside is limited. Likewise, when you are a well-qualified candidate, your downside is limited.

micah: That kinda makes sense.

harry: So Gorsuch is likely to fall in a limited range.

clare.malone: And to recall Garland, he was pretty moderate, right?

micah: There’s some dispute about this, but yes.

clare.malone: Obama wanted to make his path to approval as smooth as possible. And I guess we all know how that worked out.

natesilver: I think we’re tending to take the politics of this for granted, when I think the Democrats sort of screwed up the politics.

harry: Go on, Nate.

micah: How’d they screw it up, Nate?

natesilver: Because they didn’t define a winning condition, really.

micah: wah?

natesilver: At least when the GOP blocked Garland — again, something I think was pretty objectionable and should have received more condemnation than it did from clucking “Morning Joe” types — they had an endgame in place: Wait until Obama’s term ends, and then to the winner goes the spoils of the next Supreme Court pick.

Whereas here, it’s not clear where we go next if Democrats block Gorsuch.

clare.malone: Right, which is why I say it’s a PR/perception problem.

harry: They could try to force a more moderate pick, but they haven’t said that.

clare.malone: Do you want to harden the image of Washington as being calcified and divided, even if you are trying to stave off the baying masses of the base.

natesilver: That would have been the play, I think. “Given what happened with Garland, the Electoral College, etc., we need a consensus pick.” Stated a lot more eloquently than that, obviously.

clare.malone: It’s an interesting thing to look for, Nate, in the coming days.

micah: That would have been smart.

clare.malone: Whether Chuck Schumer tries to push something along those lines.

micah: Someone suggested to me (I can’t remember who it was) that the Democrats’ play is obstruct and delay, wait for Trump to be impeached and then say, “we need to wait for the next election,” when Mike Pence is president.

To be clear, that seems really far-fetched to me.

clare.malone: It would be nuts if the court stayed 4-4 indefinitely.

micah: It’s nuts it’s stayed 4-4 for nearly a year.

natesilver: As long as we’re in the land of far-fetched, it’s crossed my mind that you could wait for a second justice to retire and then you’d have some sort of “Grand Compromise.”

clare.malone: Supreme Court fan fic, I love it.

harry: Someone’s been watching “The West Wing” …

micah: Haha.

OK, last question: Anyone brave enough to make a prediction for how this plays out?

clare.malone: I gotta go.

micah: Convenient.

natesilver: The base case is that Democrats filibuster and just enough of them defect on a cloture vote so that Republicans get 62 votes or so. Then some of the Democrats who defected on the filibuster vote against the nomination itself to try to make the base slightly less pissed off at them, and Gorsuch winds up getting confirmed with 56 or 57 votes.

harry: There’s not a lot of research on how cloture votes go, but in an up-or-down vote, Gorsuch is the type of guy who gets all the Republicans and a few Democrats (like 2 to 5, on average). That’s not 60. Again, there’s a margin of error. But the question is whether enough Democrats vote for cloture. I’m not sure.

Basically the Nate scenario seems most likely to me.

natesilver: But there are a lot of ways that we could deviate from the base case. If Gorsuch has some vetting problem or stumbles at the hearing — or even if Democrats come up with more effective messaging than the sort of scattershot approach they had last night after the announcement — being able to sustain the filibuster becomes more likely.

And pressure from the base could matter a lot here. There are 48 Democrats, five of whom come from very red states (McCaskill, Tester, Donnelly, Manchin, Heitkamp). They might be able to get away with a certain amount. But the other 43 will have a short leash.

harry: I’d look to Sen. Angus King and Sen. Mark Warner as other potential members of the Democratic caucus to vote for cloture on Gorsuch. But even then, you’re only at 59. But we’re in uncharted territory. It’s far easier to know how a yes/no vote goes than a cloture vote, which we have little data to model off of with Supreme Court confirmations.

micah: This confirmation battle is taking place in much different circumstances politically than previous ones.

natesilver: There’s also the argument that Democrats should be careful about forcing the Republicans to go nuclear now, because they might need the filibuster later. On the other hand, if the filibuster can be nuked at any time, then what’s the value of preserving it?

harry: The argument could be that it’s better to nuke it closer to the midterms to argue that “the Republicans are out of control and we need a check on their power!” Not saying it’s a good argument.

natesilver: It’s a pretty bad argument if it only applies to the SCOTUS filibuster, although it becomes more interesting if Republicans were also talking about nuking the filibuster for all bills and not just nominations, which I don’t think they’re doing.

In the long run, the filibuster seems out of place given how cut-throat and partisan politics are these days. And I’m not sure how many more years it survives.

harry: A tradition, but like any tradition, it’s tradition for traditions to end.

Nate Silver is the founder and editor in chief of FiveThirtyEight.

Harry Enten was a senior political writer and analyst for FiveThirtyEight.

Clare Malone is a former senior political writer for FiveThirtyEight.

Oliver Roeder was a senior writer for FiveThirtyEight. He holds a Ph.D. in economics from the University of Texas at Austin, where he studied game theory and political competition.

Micah Cohen is FiveThirtyEight’s former managing editor.