Analysis

On January 31, Trump named Gorsuch, a federal appeals court judge, as his Supreme Court nominee.

Pre-election vacancy

Under US law, the president nominates individuals to fill all open federal judgeships, including for justices of the Supreme Court. The Senate must then "advise and consent" to the nomination through a vote.

Following Scalia's death, Republicans were leery of seeing an Obama appointee shift the Court's ideological balance (see UNITED STATES: Republicans will block Scalia successor - February 16, 2016).

The Republicans suffered several perceived political defeats at the hands of the federal judiciary, including on core issues such as same-sex marriage and Obama's signature Affordable Care Act.

Conservative voters' desire to see the Democrats denied a majority-setting Supreme Court appointment probably helped Trump win the election, offsetting worries about the president's lack of governing experience or visible commitment to many standard policy positions of party stalwarts (see UNITED STATES: Pence will seek to shape policy agenda - January 24, 2017).

Gorsuch nomination politics

Senate Democrats will face a political balancing act with their party's supporters -- as well as make a major political bet -- with how they procedurally and politically approach the Gorsuch nomination.

Many Democrats remain bitter about the Republicans' treatment of Judge Garland, especially at the behaviour of Senate Majority Leader Mitch McConnell.

Democrats continue to regard Garland's non-confirmation as a political insult against Obama and fear a lasting judicial block on progressive policy initiatives for some time into the future, especially if more vacancies emerge during Trump's term.

Procedural steps

Under informal Senate rules, Supreme Court nominations still require 60 votes to end debate and call for a vote.

Republicans only control 52 seats and Senate Minority Leader Chuck Schumer will probably lead a solid bloc of 48 Democrats and independents in trying to stop or slow down Gorsuch's nomination.

The Democrats could do this through the 'filibuster' process, whereby the Senate minority's refusal to end debate procedurally means a measure is unable to go to a final vote.

Republicans and pro-Gorsuch advocacy groups would respond by bombarding the districts of Democratic senators perceived to be vulnerable ahead of the 2018 midterms with attack ads.

Obstructionism incentives

The appointment battle could become an early proxy referendum on Trump's political agenda as much as it is a debate over Gorsuch's suitability and the future of the Supreme Court.

A more moderate strategy for Democrats than outright obstruction could be similar to that taken for some of Trump's executive branch appointees:

• Democrats do not block White House appointments procedurally; but
• they attack the personalities in committee hearings as extreme or incompetent as fodder for future electioneering.

Use of the filibuster may become more relevant for Democrats in the next few years, as Gorsuch's nomination may signal to Justice Anthony Kennedy -- for whom Gorsuch clerked early in his career -- that he can retire, allowing Trump to nominate an even more conservative individual to fill Kennedy's seat.

While Gorsuch would maintain the relative ideological balance of the Court by replacing Scalia, replacing Kennedy -- who is considered a persuadable 'swing vote' -- could entrench the 5-4 majority more in favour of conservative causes.

Democrats may need to save some of their political fight for that possibility, as well as preparing to make the Republicans' treatment of the Supreme Court an issue in the 2018 congressional elections.

However, even this may be stymied if Republicans seek to change the Senate's procedural rules regarding nominations.

The 'nuclear option'

Senate Republicans are also mulling a change to the Senate's procedural rules to cement approval of Gorsuch's nomination along simple partisan lines by doing away with the filibuster.

This a politically dangerous move for the upper house to take, especially for McConnell, an institutionalist who worries how further curtailment of the filibuster will shape the appointment process well beyond Trump's tenure and the current majority.

The Senate has long viewed its procedural rules as a reflection of its intent to be a more collegial, debate-friendly, consensus-motivated chamber than the majoritarian House of Representatives.

Trump has called for McConnell to do away with the filibuster to speed Gorsuch's appointment.

This is probably an option of last resort. Its use is unlikely to be necessary, as McConnell can probably get enough Democrats -- probably those facing difficult 2018 races in Trump-friendly states and perhaps fellow institutionalists -- to avoid a standoff over the 'nuclear option'.

This scenario will become more likely if Schumer -- an institutionalist -- avoids an explicit call for obstruction to preserve the filibuster for future use.

However, this may lead to greater disunity behind Schumer as leader. Left-wing senators representing politically uncompetitive states have little to fear at the ballot box from taking a hard-line position (see UNITED STATES: Democrats will rebuild from Senate - December 19, 2016).

Supreme Court impact

If Gorsuch is confirmed for the Supreme Court, his influence is likely to return the Court to its pre-2016 dynamic.

Gorsuch's judicial views align closely to those of Scalia:

• He favours limited government in all its forms, including when such limitations favour criminal defendants.
• He gives deference to broader religious expression in society.
• He views the Constitution as a literal and frozen document, rather than an adaptable one.
• He takes a dim view of the import of legislative history when reviewing laws.
• He favours granting states more powers over interstate commerce, even if doing so harms the interests of other states.

If he is confirmed to the Court, many social conservatives will push for renewed litigation to attack federal policy in areas they ardently oppose, such as abortion and contraception access, via the courts.

Pro-business conservatives will probably welcome Gorsuch as well, especially given his anticipated stances on issues related to taxation, political contributions and international legal liabilities.

However, Gorsuch would probably not be a rubber stamp of the White House's viewpoints, especially on internal police powers.

Efforts by conservative advocacy groups to re-litigate settled legal principles, especially abortion access, will nevertheless probably not be heard by the Court or produce any massive change in US jurisprudence.