Politics

Leahy will not vote for Trump’s Supreme Court nominee

Neil Gorsuch
Nomination of the Honorable Neil M. Gorsuch to be an associate justice of the Supreme Court of the United States. Senate courtesy photo
WASHINGTON — U.S. Sen. Patrick Leahy, D-Vt., will not support Judge Neil Gorsuch’s nomination to the Supreme Court.

A week ago, Leahy was undecided. After four days of hearings, Leahy told VTDigger in an interview Sunday night, “Philosophically, I’ve seen nothing that will bring me to vote for Gorsuch.”

Leahy said he is waiting for Gorsuch to submit written answers to a list of supplemental questions. But, he added, “I suspect his written answers are not going to change my views.”

Battle lines were drawn by Democrats on the first day of the hearings last Monday. They questioned his stance on abortion, worker protections, religious exemptions, the rights of corporations and his adherence to the theory of originalism.

Leahy, a longtime member of the Senate Judiciary Committee, has participated in confirmation hearings for 14 other Supreme Court nominees.

Of the 14 nominees that have received a Senate vote, Leahy has voted against four nominees — William Rehnquist, Robert Bork, Clarence Thomas and Samuel Alito. Leahy has supported seven nominees of Republican presidents, including current Chief Justice John Roberts and Antonin Scalia, whose seat Gorsuch would fill.

“I don’t have a problem with a conservative judge, I’ve voted for a lot of conservative judges,” Leahy said. “But when you have somebody who won’t answer basic questions on everything from freedom of religion to presidential litmus tests, that’s very troublesome.”

Sen. Bernie Sanders, I-Vt., opposes Gorsuch, because of the nominee’s evasive answers and his views on women, workers, corporations and the Voting Rights Act. “I had looked forward to Judge Neil Gorsuch sharing his views on the Supreme Court’s critical role on some of the most important issues in America,” Sanders said. “Instead, he refused to answer legitimate questions and brought the confirmation process to a new low in a thick fog of evasion.”

The most senior senator, Leahy retains a vision for the chamber as one that promotes bipartisanship and compromise. Leahy has long expressed concern about the politicization of judicial nominees, and he does not support Senate Minority Leader Chuck Schumer’s decision to filibuster the Gorsuch nomination, which would effectively block a full Senate vote.

“I am not inclined to filibuster, even though I’m not inclined to vote for him,” Leahy said.

Arcane Senate rules currently hold that any Supreme Court nominee must receive 60 votes before he or she can be given a confirmation vote on the floor. With Republicans holding a 52-seat majority, current rules dictate that eight Democratic senators must vote “Yes” in a cloture vote to bring Gorsuch’s nomination before the Senate for a floor vote.

If Schumer, a Democrat from New York, and a coalition of Democratic senators filibuster Gorsuch, Senate Majority Leader Mitch McConnell, D-Ky., could rewrite Senate rules and discontinue the filibuster for Supreme Court nominations. In the face of Republican obstruction to President Barack Obama’s federal judicial nominees, Democrats used the so-called “nuclear option” and blew up the filibuster for all executive branch and judicial nominees in November 2013.

“I do think the end of the filibuster hurts everybody,” Leahy said. “I was very reluctant to see us use the nuclear option, thought I don’t think we would have seen any of President Obama’s judges go through without it.”

During Obama’s tenure, the confirmation process of judicial nominees was a more protracted process compared with Republican President George W. Bush’s record of confirmations.

After Republicans retook the Senate in 2014, Leahy blasted the party for the “glacial pace” of Obama’s judicial nominees, suggesting that gender discrimination and politics was driving the inaction.

In an October 2015 press release, Leahy’s office pointed out that in the last two years of the Bush presidency — when Democrats were in the majority — the party had confirmed nearly four times more judges for the federal bench than Republicans had with Obama.

“If Republican obstruction continues, and if home state Senators cannot persuade the Majority Leader to schedule a vote for their nominees soon, then it is unlikely that even highly qualified nominees with Republican support will be confirmed by the end of the year,” Leahy said at the time. “These are nominees that members of the Majority Leader’s own party want confirmed, including several from Tennessee and Pennsylvania.”

On Sunday Leahy said he was disheartened to see partisan battles being waged over judicial nominees, and he invoked the unprecedented refusal of Republicans to hold a hearing for Merrick Garland, President Barack Obama’s nominee to replace Scalia.

“If politics continues to pervade judicial nominations, Americans will lose faith in the judiciary,” Leahy said. “They have already lost faith in the presidency and the Congress, there’s not much trust left in government.”

During last week’s confirmation hearings, Leahy pressed Gorsuch to explain his judicial philosophy on everything from same-sex marriage to executive overreach.

In an exchange that garnered national headlines, Leahy pushed Gorsuch to denounce a range of Trump policies, from his remarks encouraging torture to his ban on U.S. entry by residents of six Muslim majority countries, which is currently tied up in the courts.

“Do you ban someone solely on their religion?” Leahy asked.

“No man is above the law,” Gorsuch tersely responded.

Speaking on Sunday, Leahy said Gorsuch’s vague answers had not assuaged his concerns about Gorsuch’s independence from the president.

“I’d hope that, whether he was a Republican or Democrat, Gorsuch would would be willing to challenge the president’s policies,” Leahy said. “His unclear answer is what bothered me the most.”

On Monday, the Senate Judiciary Committee will take up Gorsuch’s nomination, though the committee is expected to delay the vote for a week so that senators can thoughtfully review supplemental answers from the nominee. Senate Judiciary Chairman Charles Grassley, R-Iowa, said he hopes Gorsuch can be confirmed to the court by the April recess, a deadline that may be complicated by the threat of a Democratic filibuster.

Neil Gorsuch, Patrick Leahy


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Jasper Craven

About Jasper

Jasper Craven is VTDigger’s political reporter. A Vermont native, he first discovered his love for journalism at the Caledonian Record. He double-majored in print journalism and political science at Boston University, and worked in the Boston Globe’s Metro and Investigative units. While at the Globe he collaborated on Shadow Campus, a three-part investigative series focused on greed and mismanagement in Boston’s off-campus student housing market. The series was a finalist for the 2015 Pulitzer Prize.
He also spent two years at MuckRock, a news sited dedicated to investigation and analysis of government documents. 

Craven covered Vermont’s U.S. Congressional delegation for the Times Argus in the summer of 2014, and worked as a Metro reporter for the Chicago Tribune before joining the staff of VTDigger.

Email: jcraven@vtdigger.org

Follow Jasper on Twitter @Jasper_Craven

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  • Dominic Cotignola

    Seriously, your not going to filibuster? Repubs did it time and time again with obstruction and your just going to “follow the rules” in this day and age?

    Obstruct the Supreme court vote. You should be pissed about Obama’s nominee not being voted on. Oh, we forgot about that already.
    Obstruct and filibuster every single vote that is proposed.

    In other words, act like a repub and get a spine (as they say). You have 1400 days to do something before you get the next vote for power. Stop whining you don’t have power. Talking is cheap, I want to see action NOW! Not next year or next week. NOW!

  • RandyKoch4

    I don’t accept Leahy’s refusal to participate in a filibuster. He is permitting the reactionary GOP to kick him in the teeth on the Obama nominations without forcing them to suffer painful reactions. For what? To preserve decorum in as creepy an institution as the US Senate?

  • Tim Vincent

    Does anyone actually expect Leahy to NOT act in his usual angry bitter partisan manner?
    Play to the base, as shown by the 2 previous angry comments.

    • David Bell

      You mean he plans on treating Republicans the same way they have been treating Democrats for the last 8 years. THE HORROR!

      • Jerry Kilcourse

        Exactly…apparently the Republicans get upset when the Democrats aren’t pushovers and don’t play nice.

  • John McClaughry

    “I’d hope that Gorsuch would be willing to challenge the president’s policies,” Leahy said.
    “His unclear answer is what bothered me the most.”
    Leahy knows perfectly well that judges don’t rule on a president’s policies until a case comes before them, and it is utterly out of line for a judge to pre-judge hypothetical cases. But this is all partisan Kabuki theatre. For the Democratic base, it’s all about inflicting defeats on Trump, never mind fair play or a nominee’s qualifications.
    Let’s see if Leahy votes to filibuster. If Schumer has 40 votes in his pocket, he might let Leahy off. If he needs Leahy’s vote, he’ll have it.

    The report overlooks Leahy’s defiant statement in I think 1997, that every Supreme Court nominee deserves an up or down vote within 90 days.

    • Neil Johnson

      With that statement, Isn’t he literally asking him to make laws from the bench? I thought he and any judge on the supreme court was supposed to weigh the case against the constitution? I thought he was trying to be a judge not a politician.

      Challenging the presidents polices? Isn’t that for politicians?

    • Daphne Black

      Never mind 1997, what about Merrick Garland’s vote?

      • Steve Baker

        80 years of precedent where Democrats wouldn’t vote for a lame duck nominee

        • Daphne Black

          That is untrue, please provide a cite.

    • Jerry Kilcourse

      .” For the Democratic base, it’s all about inflicting defeats on Trump, never mind fair play or a nominee’s qualifications.”
      I’m shocked, shocked that anyone would resort to such tactics, especially since “one term” Mitch McConnell set such a stellar example during the last 8 years.

      • Dominic Cotignola

        Oh’cmon..were you listening to politics from 2008-2016? It was all about inflicting defeat on Obama. Playing to the Republican base. Right back at ya for the next 4 yrs.

        • Steve Baker

          Hey one time I agree with you

    • Christopher Daniels

      Republicans changed the rules of the game when they didn’t even consider Merrick Garland’s nomination in committee. They should not expect Senator Leahy to continue playing by the old rules.

      • Steve Baker

        They changed an 80 precident? Really?
        Really smart Democrat she like Schumer Biden and Leahy all said in the past it’s not a good idea to vote for a Lame Duck nominee.
        Memory and Video are the defense against liberals.

        • Christopher Daniels

          That ’80 year precedent’ that you’re so fond of using as a pedestal was the 70+ days time frame between election and inauguration. Not 293 days. Ideology before facts.

          • Steve Baker

            What were Chuck Schumers and Joe Bidens Quotes?

        • Daphne Black

          Again this is untrue.

        • JohnGreenberg

          Steve Baker:

          Please cite any prior instance when a presidential nominated a justice and the Senate refused to vote on the nomination during this 80-year period. Here’s a hint from Politifact: ‘However, we can’t find a time when a Democratic Senate refused to hear a
          Republican president’s nominee. Even if they were opposed, they allowed
          the nominee to come to a comfirmation vote. ” http://www.politifact.com/truth-o-meter/statements/2016/mar/20/harry-reid/harry-reid-says-unlike-gop-senate-democrats-never-/

    • JohnGreenberg

      John McClaughry:

      “Leahy knows perfectly well that judges don’t rule … until a
      case comes before them, and it is utterly out of line for a judge to pre-judge hypothetical cases.”

      I’ve watched (only) some Gorsuch testimony, but he also refused to answer questions about cases which have ALREADY been decided. Such a question is not hypothetical. If Gorsuch can’t answer because, as he said, the question may come before him in another case, then shouldn’t every sitting Supreme Court justice recuse herself from an issue on which she had previously ruled or even worse, written an opinion?
      If not, why not?

      If issuing a ruling or writing an opinion disqualifies a
      justice from ruling on a new case, then we need a new institution. Every Supreme Court justice who has served any length of time has considered most issues, often more than once.

      Gorsuch should have answered (or been pressured to
      answer) questions about DECIDED cases, but he refused to do so.

  • Any judge that rules that someone must make a choice between their life and their job does not belong on the Supreme Court – hard stop. Gorsuch made just such a ruling where a trucker opted to leave his broken down trailer rather then freeze to death. Gorsuch sided with the corporate instead of the human world.

    • Lester French

      I suspect the driver could have remained with the trailer in his tractor with the heat on. Most professional drivers are prepared to be stuck for extended periods of time.

      • Matt Kelly

        You haven’t read the facts of the case. I suggest you do. The comment about remaining with his tractor with the heat on is relevant and when you read the specifics, you come to the conclusion that 11 other judges reached, except Gorsuch, who wrote the dissent.

    • Steve Baker

      He made the mistake of following the Law?

  • Steve Baker

    Do we really care about Leahy? He’s been irrelevant for many years. He doesn’t live in Vermont nor does he speak for a large part of Vermont.

  • Jamie Carter

    “Leahy said. “They have already lost faith in the presidency and the Congress, there’s not much trust left in government.””

    This maybe the truest thing Pat has ever said… he acknowledges we do not have any faith in him or his colleagues. Sadly, he doesn’t realize after 40 years he is part of the problem, and no longer part of the solution.

  • ronald grande

    Leahy’s logic: I will move Gorsuch for a vote because we have a fillibuster, but if i use it they will take it away . . . if, you have something, but refuse to use it out of fear; then do you really have it? #peepantsleahy

  • Ned Pike

    Please, please, please go ahead and filibuster. Then comes the nuclear option. Losing the nuclear option on a one-for-one replacement for Scalia is not where you want to spend that option, what with Kennedy about to retire and Ginsburg getting up there in years. As for those complaining about Garland I give you Joe Biden, Senate Judiciary Chair circa 1992:

    “Once the political season is underway, and it is, action on a Supreme Court
    nomination must be put off until after the election campaign is over,”
    Mr. Biden said in his 90-minute speech, which was so long it spanned 15
    pages of the Congressional Record. “That is what is fair to the nominee
    and is central to the process.”

    If it was OK for Biden, then it’s OK period. Don’t try to argue further. Oh, and once a President leaves office, his unconfirmed nominees are no longer nominees.

    • Daphne Black

      Biden said one time, Let’s wait. Everyone said NO and they went ahead and voted. I don’t think your example is a good one.

      And telling people that they are not allowed to argue further? Who made you the arbiter of when an internet discussion is over?

    • JohnGreenberg

      Ned Pike:

      You’ve missed a few points. Most importantly, when Biden spoke, there was no vacancy and no nominee. He was speaking generally, not in answwer to an actual nomination. Moreover, the full context of his speech is also worth considering. Please read this and reconsider your comment: http://www.politifact.com/truth-o-meter/article/2016/mar/17/context-biden-rule-supreme-court-nominations/

      • Tom Hilterbrant

        Nice try. But saying there was no nomination and no nominee doesn’t relieve Biden of the responsibility of saying that whatever Party is elected should choose the next nominee. That is what McConnell said, gambling that Republicans would win (and a stupid gamble if you looked at the polls when he said this). But he won the gamble, and now all the liberals can do is whine about something that they, themselves, would have done, if the circumstances were reversed! Do you think it would have been respectful for the Republicans to put Garland thru a dog and pony show that would have ultimately turned into his being Out Right Rejected? That is what would have happened. In other words, the result of his nomination would have been the same, in either case. Leahy is right. Vote for cloture and let the chips fall.

        • JohnGreenberg

          Tom Hilterbrant:

          Your equation of a SPEECH by one senator to the ACTIONS of the Senate majority won’t wash. There is no evidence that Joe Biden’s statement would have led all or even most Democrats to follow his lead. By contrast, Mitch McConnell
          successfully led his party, in virtual lock step, to refuse to act on a perfectly legitimate, Constitutionally mandate, nomination.

          As to your question — “Do you think it would have been respectful for the Republicans to put Garland thru a dog and pony show that would have ultimately turned into his being Out Right Rejected,” my answer is yes.

          First, Judge Garland had been before the Senate before, and almost all Republicans voted for his nomination. That does not imply that they would have done so for his nomination to the Supreme Court, of course, but it does suggest that the conclusion was not as forgone as you suggest.

          Moreover, regardless of the outcome, the unambiguous letter of the Constitution would have been followed, which in Garland’s case, it clearly wasn’t. It’s the height of hypocrisy to claim to be Constitutional “originalists” or “strict constructionists” while totally ignoring what our founding document decrees.

          • Tom Hilterbrant

            Unambiguous letter….geez. Like Liberals care about the letter of the law (“The Constitution is a LIVING document..”). Gorsuch was confirmed by nearly all the Dems for his circuit court seat. To say the conclusion was not forgone in Garland’s case is ludicrous. And let us not forget that McConnell made his statement BEFORE Garland was even nominated. But my question is really this: Why are the progressive faithful sending Schumer and other fearful Dems on a death march to failure? Gorsuch will be confirmed, and forcing the new majority leader to do pretty much what Cruz did in shutting down the government back in 13 will be just as fruitless, and could be a whole lot more harmful. The Senate is the one last place for a minority to hold things up, yet the Dems seem perfectly agreeable to allowing McConnell to push the button and destroy any future voice they might have. If this seat had been Ginsberg’s? Then I might understand. But Gorsuch’s confirmation simply puts the court back to the way it was. Please, tell me, what is the point?

          • JohnGreenberg

            Tony HIlterbrant:

            I don’s speak for “liberals.” I speak for myself.

            The Constitution is clear and I DO care about what it says. The notion that the Constitution is a living document refers to the interpretation of ambiguities. If you have any evidence of liberals ignoring what the document says, present them.

            There is no parallel of any kind between shutting down the government and voting against a judge. The analogy is ridiciulous.

            “The Senate is the one last place for a minority to hold things up” via the filibuster. As I suggest below in an open letter to Senator Leahy, I don’t think that’s generally favored progress in this country.

            But if you’re convinced otherwise, write Mitch McConnell, and tell him not to invoke the “nuclear option.”

          • Tom Hilterbrant

            Fact is, McConnell did nothing unconstitutional. Constitution clearly states that the Senate sets its own rules, therefore would set procedure on how to “advise and consent” as it relates to nominees. By not acting on the nomination, the Senate “acted”, in effect turning down the nomination. Nothing in the constitution says that any majority party has to hold hearings or even invite the nominee in for a cup of coffee. McConnell surely disregarded protocol, which has caused all the uproar. But he did nothing that broke any rule.

          • JohnGreenberg

            “. By not acting on the nomination, the Senate “acted”” That’s your best argument?

            You’re absolutely correct that “Nothing in the constitution says that any majority party has to hold
            hearings or even invite the nominee in for a cup of coffee.” But it does say, the President “shall nominate, and by and with the
            Advice and Consent of the Senate, shall appoint …Judges of the supreme Court.” Please find a Constitutional scholar who believes that failing to advise or consent is the same as advising and consenting, and we’ll be on the same wavelength.

            McConnell and the Republicans were well within their rights to vote against the nomination, but that’s not what happened.

            Here is Justice Roberts, talking about this very issue as it pertains to healthcare: “People, for reasons of their own, often fail to do things that
            would be good for them or good for society. Those failures—joined with
            the similar failures of others—can readily have a substantial effect ….Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned….” NFiB v Sibelius, Section IIIA1)

          • Douglas Hutchinson

            John Greenberg:
            “Please find a Constitutional scholar who believes that failing to advise or consent is the same as advising and consenting, and we’ll be on the same wavelength.”
            Here are some who quickly come to mind:

            Michael Ramsey UCSD Law

            http://originalismblog.typepad.com/the-originalism-blog/2016/03/law-professors-letter-on-supreme-court-appointmentsmichael-ramsey.html

            Ed Whelan Former USSC Clerk

            http://www.nationalreview.com/bench-memos/432525/law-professor-letter-senate-power

            Jonathan Adler Case Western Law School, Noah Feldman Harvard Law School, and Vikram Amar of Univ of Illinois also have written on the topic. Their works are linked in the first two pieces.

            There is no constitutional text requiring the Senate to advise and consent contrary to Mr. Greenberg’s posts earlier in the thread. It’s worth keeping in mind that there is only one Appointments Clause. It covers executive appointments, lower Federal court appointments and USSC appointments without textual distinctions in the Clause. It is common for executive nominees and lower court nominees to NEVER receive consideration by the Senate. For example, John Roberts was nominated to the D.C. Circuit in January of 1992, GHW Bush’s last year in office. The nomination died in January of 1993 when Clinton took office. Joe Biden who later that year announced the “Biden Rule” refused to take up the Robert’s nomination. That span was 2 months longer than Merrick Garland’s.

          • JohnGreenberg

            Thank you for providing the citations to constitutional scholars. I find their arguments totally unpersuasive, but I appreciate your providing the links.

            “It covers executive appointments, lower Federal court appointments and
            USSC appointments without textual distinctions in the Clause.” Either I’m misunderstanding what you say here, or it’s clearly wrong.

            The appointments clause explicitly mentions “judges of the Supreme Court.” I quoted it above. It does not explicitly mention any other judges. Isn’t that a “textual distinction?”

  • Charles Burnham

    I think Leahy is just mean spirited and is only a Schumer puppet. I am sure he really knows how talented this man is.

    • Homer sulham

      I think Leahy has been pretty much a puppet his whole career.

  • Homer sulham

    Starting to sound like April, 19 1775 all over again.

  • JohnGreenberg

    When this article first appeared, I wrote to Senator Leahy as follows:

    Dear Senator Patrick Leahy:

    An article in VT Digger quotes you saying: ““I do I think the end of the
    filibuster hurts everybody.” https://vtdigger.org/2017/03/27/leahy-will-not-vote-trumps-supreme-court-nominee/

    While there are clearly instances where the filibuster has been used to
    block reactionary legislation (or appointments), as I search my memory, it
    appears to me that the filibuster has been used FAR more often to block
    progressive legislation and appointments.

    Until around 1980 (or thereabouts), the most frequent users of the
    filibuster, if I’m not mistaken, were Southern Democrats allied with
    conservative Republicans, seeking to defeat or at least hamper civil rights
    legislation (mostly), as well as other progressive initiatives.

    Since then, the filibuster appears to have gradually become far more
    partisan AND to have been invoked far more frequently. The Republicans made it
    habitual during the Obama years, even invoking it for legislation they then
    supported.

    I rehearse this history to lead to a sincere question, which is this: while
    it’s easy enough to construct scenarios where, having eliminated the filibuster,
    we liberals would wish that we still had it, are we really better off with it
    than without it? The history I’ve just provided, if it is accurate, appears to
    me to suggest otherwise.

    I’d be very curious to hear your thoughts on this.

    Since it’s been a few days and I haven’t heard back, I thought it reasonabled to share the email publicly.