With the Senate’s April 7 confirmation of Neil Gorsuch, 49, to become the next associate justice of the U.S. Supreme Court, tribes got a judge they think will be pro-tribal sovereignty.
The final Senate vote was 55-45 in favor of advancing his nomination, with all Republicans and four Democrats, including Heidi Heitkamp of North Dakota, a regular tribal ally, supporting him. It took the breaking of a long-standing Senate rule that will forever change the deliberation outlook of the chamber to get him.
Gorsuch, a 10th Circuit Court judge since 2006, has heard many Western-based tribal cases (there are 76 federally-recognized tribes in the 10th Circuit), and he has often ruled in favor of tribes and Indian individuals. He cited an Indian religious freedom case during his confirmation hearings as one of the most important cases he has overseen, and he expressed knowledge of tribal sovereignty and the historical injustices the United States has long carried out against Native Americans.
Many tribal leaders supported Gorsuch, despite his largely conservative background. In the recent past, tribes have been more sympathetic to liberal justices, as such justices have tended to rule more favorably on tribal matters (although there are many cases that are exceptions). Tribes had numerous problems with the rulings of ultra-conservative Justice Antonin Scalia, who passed away in 2016 leaving the vacancy that is now filled by Gorsuch.
“As noted repeatedly during the hearing, Judge Gorsuch has significant experience with cases involving the interests of Indian tribes and Indian people. His opinions recognize tribes as sovereign governments, and address issues of significance to tribes, including state police incursion into tribal lands, sovereign immunity, religious immunity, accounting for trust funds, exhaustion of tribal remedies, and Indian country criminal jurisdiction,” wrote Brian Cladoosby, president of the National Congress of American Indians (NCAI), and John Echohawk, executive director of the Native American Rights Fund, in a March 24 letter to Senate leadership that was symbolic of many letters sent by tribal leaders during the confirmation process.
The letter said that Gorsuch attended a meeting of NCAI in 2007 and “engaged in insightful dialogue with tribal leaders regarding the status of federal Indian law in the courts.”
Until April 6, Gorsuch would have needed 60 votes to overcome a filibuster of his nomination. But Democrats would not give him that, despite his relatively unremarkable and uncontroversial confirmation hearings; in an appeal to progressive voters, they pushed back, often citing the blocking of a confirmation process by Republican leaders in 2016 for Merrick Garland, President Barack Obama’s nominee to fill the Scalia position.
Senate Majority Leader Mitch McConnell retaliated against the Democratic opposition by having Senate Republicans vote to remove the long-standing 60-vote requirement to approve Supreme Court nominees to instead require a simple majority of 51 votes for confirmation. In doing so, he invoked the so-called “nuclear option,” which gives the minority in the Senate much less of a say in future Supreme Court confirmations. Former Democratic Majority Leader Harry Reid had already done the same in 2013 for other federal appointments, citing slow progress and Republican interference in confirming Obama judges and other appointees, which angered Senate Republicans who vowed retaliation when they returned to power. Reid’s move at the time helped secure the confirmation of Keith Harper, a Cherokee lawyer with Kilpatrick Townsend who played a major role in negotiating the Cobell settlement with the Obama administration, to become the U.S. representative to the United Nations Human Rights Council in 2014.
The next big question is whether the Senate will eventually move toward requiring only a simple majority to approve legislation, doing away with the 60-vote filibuster all together. In some situations for Indian-focused legislation, that could be a good thing; in other cases, it could be very bad. McConnell has vowed not to do so, but many Senate watchers never expected him and Reid to change the rules as they have done, so time will tell.