A Divided Senate Confirms Cabinet Nominees

  

Earlier this week, we recapped the flurry of confirmation activity we expected during the week of February 6th-10th.  Congress barnstormed through a series of contentious confirmation votes.

On Tuesday, the Secretary of Education nominee, Betsy DeVos, was confirmed by a slim 51-50 vote in the Senate with Vice President Pence casting the tie breaking vote. The following day, Senator Sessions was confirmed almost entirely along party lines with a 52-47 vote to have him lead the Justice Department as Attorney General. In a procedural move, Senate Majority Leader Mitch McConnell prevented Sen. Elizabeth Warren (D-MA) from reading a letter opposing Sessions’ nomination for a federal judgeship written by civil rights icon Coretta Scott King to the U.S. Senate back in 1986; McConnell invoked Rule 19 of the Senate Rules. The rule, which states that ‘No senator in debate shall, directly or indirectly, by any form of words impute to another Senator,’ is rarely invoked and thus drew widespread criticism. Unsurprisingly, the procedural silencing only drew wider attention to the now famous letter.

On Wednesday, the President’s nominee for the Supreme Court, Neil Gorsuch, told Senator Richard Blumenthal (D-CT) that he found the President’s comments on the judiciary both “demoralizing” and “disheartening.” Senate Democrats, however, continue to cast doubt over Gorsuch’s ability to be an independent judicial check on the President’s authority.

Congressman Tom Price (R-GA), on Friday, was confirmed by a vote of 52-47 to become Secretary of Health and Human Services. Following extensive debates over ethics and Price’s investments in healthcare companies he had jurisdiction over as a member of Congress, Republicans called the early morning roll-call vote at about 2:00 AM. He was sworn in later that morning by Vice President Mike Pence.

Lastly, the ninth circuit federal court of appeals unanimously ruled to uphold a lower court’s ruling blocking President Trump’s travel ban from seven majority-Muslim countries. The lawsuit was filed by the Washington state Attorney General, and is a significant setback for a Presidency that’s only three weeks old.

President Trump Nominates Judge Neil Gorsuch (10th Circuit) to the Supreme Court

  

Last night, President Trump tapped federal appeals court Judge Neil Gorsuch to fill the empty seat on the Supreme Court.

Gorsuch is a right-leaning judge who once clerked for Justice Anthony Kennedy.  Gorsuch, 49, is among youngest of recent Supreme Court nominees (Justice Clarence Thomas was 43 when nominated, and Chief Justice John Roberts and Justice Elena Kagan were both 50.)

In 2013, he was part of the lower court that sided with Hobby Lobby. That’s the private company that successfully argued that Obamacare violated its religious beliefs by requiring it to cover birth control for its employees. Gorsuch is considered an “originalist” – meaning he believes the Constitution should be interpreted exactly how the Founding Fathers wrote it. If approved, he’d be filling the seat of another originalist, Justice Antonin Scalia, who died almost exactly a year ago.

Under the Constitution, the President nominates a Justice and the Senate has to approve. Last Congress, the Republican Party argued that they didn’t think President Obama should fill the seat in an election year. Obama went ahead and picked centrist federal appeals court Judge Merrick Garland but since the GOP controlled Congress, it blocked Garland all year. Dems were less than pleased.

Supporters say this is exactly what they wanted: a right-leaning justice who’ll keep the Supremes to the right. Critics remember Trump’s campaign promise to appoint someone who’d overturn Roe v Wade – and worry Gorsuch could help make that happen.

What’s next? Gorsuch now has a job interview with the Senate. And since the Dems aren’t super thrilled to be interviewing Gorsuch, they’ll be giving him extra scrutiny. They may even choose to filibuster (read: block) his confirmation. If that happens, the GOP could ‘go nuclear’ – aka change the rules so they wouldn’t need the Dems to approve Trump’s pick at all.

Freedom of Religion: In Hobby Lobby Stores vs. Sebelius, Gorsuch wrote a concurring opinion siding with the craft store and its owners arguing the courts should accept one’s interpretation of their faith’s requirements and that they were likely to succeed in claiming the ACA contraception mandate infringed on their freedom of religion.

Regulations:  Gorsuch has also questioned the constitutionality of the current volume of federal regulations Caring Hearts Personal Home Services vs Burwell.

Guns: While not a Second Amendment question, Gorsuch has indicated disagreement with some convictions for a felon’s knowing possession of a firearm, suggesting that prosecutors must prove that the defendant both knew he or she was a felon and knew that he or she was in possession of the firearm (rather than just knowingly possessing a firearm being sufficient for conviction). In one such case, Gorsuch did note that “gun possession is often lawful and sometimes even protected as a matter of constitutional right,” but it was still settled on statutory rather than Second Amendment grounds.  These cases are less an indication of Gorsuch’s views on gun rights, and rather evidence that — like Scalia — Gorsuch is an advocate for the rule of lenity. Conservative outlet American Thinker criticized Gorsuch for joining the majority opinion in U.S. v. Rodriguez, where the court cited Terry v. Ohio to uphold the legality of the search of a man who was found to be in possession of an illegal handgun. American Thinker wrote the case “causes us to have some concern about his understanding of the relationship between the government and an armed citizenry,” while acknowledging that the ruling was on Fourth Amendment grounds, not Second Amendment grounds.