After 421 days, and after two bitter partisan clashes in the U.S. Senate, the vacant seat on the U.S. Supreme Court has a new occupant: Justice Neal M. Gorsuch, who will be 50 years old in August. Becoming history’s 113th member of the court, he succeeds the late Justice Antonin Scalia, praised by Gorsuch at a White House Rose Garden ceremony on Monday morning as “a very, very great man.”
He took the second of two oaths at 11:16 a.m., this one administered by “my mentor” – Justice Anthony M. Kennedy, for whom Gorsuch worked as a law clerk a quarter-century ago. He is the first former clerk to move from that position to sit on the bench with the same Justice. After Gorsuch recited the oath, the two of them hugged.
About two hours earlier, Gorsuch took another oath, administered by Chief Justice John G. Roberts, Jr., in a private ceremony in the Justices’ conference room at the court, standing under a portrait of Chief Justice John Marshall – acknowledged widely among historians as the court’s greatest-ever Justice.
The first oath Gorsuch took is the constitutional oath, pledging to support and defend the Constitution, and the second is an oath required of all federal judges, “to do equal right to the poor and the rich.”
Before Kennedy administered the oath, he spoke of how the Constitution binds the nation’s people together in a common destiny. Kennedy is generally considered to be the holder of the vote that is often the most influential, the “swing” vote to decide an outcome when the court’s two blocs of conservatives and liberals divide evenly. During the vacancy left by Scalia’s death, the court did split 4-to-4 on some major issues, leaving them unsettled.
President Trump addressed the crowd assembled on the lawn next to the Rose Garden, speaking for about ten minutes. As most presidents do at such ceremonies, Trump said the task of choosing a Supreme Court Justice is “the most important thing a president of the United States does.”
And then, in a personal note that is already a hallmark of this presidency, Trump promptly added: “And I got it done in the first 100 days!”
Gorsuch has now taken a seat that President Obama had intended to fill last year with Circuit Judge Merrick B. Garland, who was nominated about a month after Scalia’s death. The Senate’s Republican leadership, however, denied Garland a hearing and a vote, saying they were saving the seat for the next president, and the Garland nomination ended at the close of the last Congress.
And Gorsuch won Senate confirmation with only four votes to spare in the deeply and emotionally divided chamber, after the Republican leadership changed the Senate rules so that he could be approved with a majority rather than a super-majority vote that otherwise would have been required because the chamber’s Democrats sought to block confirmation by staging a filibuster.
Neither one of those divisive battles was mentioned at the White House ceremony. And neither in any way takes away from the authority and dignity that Gorsuch inherits with his seat at the end of the court’s big mahogany bench.
His first public appearance on that bench is expected to be at the beginning of the court’s next hearings session, next Monday; the final 13 cases to be heard during this term will come up during that sitting. But Gorsuch will join his new colleagues on Thursday of this week in a private conference to discuss whether to grant or deny review of new cases. At least some of those results will be announced in public next Monday.
\It will take the votes of any four of the Justices to accept a new case for review. The court has been holding off on acting on a number of deeply controversial cases, apparently to await the arrival of a ninth member. Among those are cases raising issues of religious freedom, gay rights, gun rights, and voting rights.
(This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)