The NPR Politics Podcast - Gorsuch Hearings Continue

Episode Date: March 22, 2017

Day two of Senate confirmation hearings for Supreme Court nominee Neil Gorsuch. This episode: host/congressional reporter Scott Detrow, White House correspondent Tamara Keith, reporter Ailsa Chang and legal affairs correspondent Nina Totenberg. More coverage at nprpolitics.org. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

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March 21st. Things may change by the time you hear it. Keep up with all of NPR's political coverage at NPR.org, on the NPR One app, and on your local public radio station. Okay, here's the show. Hey there, it's the NPR Politics Podcast here to discuss Tuesday's Senate confirmation hearings for Supreme Court nominee Neil Gorsuch. President Trump's pick for the Supreme Court was the man in the arena today sitting in front of the Senate Judiciary Committee answering hour after hour after hour of questions. I'm Scott Detrow. I cover Congress for NPR. I'm Tamara Keith. I cover the White House. And I'm Elsa Chang. I used to cover Congress, but now I'm at Planet Money. And now you're back. We pulled you back like the main character in a Western. And you cannot do an NPR podcast about a Supreme Court confirmation hearing without our legal affairs correspondent, Nina Totenberg.

Hey, Nina. Hi. So can you describe where you are right now? You're like in a booth looking over the hearing room. Exactly. I'm over the hearing room. They've taken a short break while senators vote. So, Nina, you're on deadline.

There's a hearing going on. So we're going to walk through a lot of the specific moments in the hearings in a little bit. But while you're here, let's stick to some of the big picture stuff. You've seen a lot of these hearings. How did Gorsuch do compared to other nominees? Well, I would have to put it at a probably a B-plus performance. He answered smoothly. But he's very practiced. There's something less than fully genuine. He's rehearsed so much, and he so avidly wants to say nothing.

Now, it's not that previous nominees haven't also been very devoted to saying nothing, but it always seems a little dodgy when you say the same thing over and over and over again. How important are these hearings? Like, why does this hearing matter? Well, I would say that this time it may matter less because of what the Republicans did in blocking Obama nominee Merrick Garland for nearly a year without giving him a hearing, even though the Republicans agreed that he was supremely qualified and a very distinguished judge. So there's enormous bitterness among Democrats. And I don't think that Judge Gorsuch has much of a chance of getting most of the Democrats. A few, perhaps, who are up for reelection in red states may vote for him, but I don't think the vast majority of Democrats will vote for him.

Now, John Roberts got half the Democratic votes when he was before this committee, and I think his performance helped him a lot. So, Nina, this is Tam. Why do they say nothing? Like, why is it that there are these long hearings where the goal is to say absolutely nothing in different ways? Because the last guy who said something was Robert Bork, and it got him in a lot of trouble. What did he say? He said lots of things. I mean, he'd had extremely conservative views, and he either walked away from them, which became a sort of a confirmation conversion. Then he said he was devoted to the concept of stare decisis, that is following precedent. And then they came up with a tape of him telling an audience that he didn't think precedent was very important at all.

And this was an arch conservative nominee from Ronald Reagan. Now, did he withdraw or was he straight up voted down by the Senate? Well, the president would have loved to have had him withdraw, but because they didn't have the votes, and he was rather significantly defeated. And he went into those hearings with the votes to win confirmation, and he came out not winning confirmation. So the lesson of that was say as little as possible. Well, what do you know about Gorsuch now that you didn't know at the beginning of the day?

I actually know he's probably more conservative than I ever thought. How so? Why is that? For example, the Democrats are very hot to question him about campaign finance regulation. The Supreme Court, by a 5-4 vote in 2010, opened the floodgates to campaign cash. And that was Citizens United? That was Citizens United. The only salvation in some ways for people who believe in regulation was that there was the possibility, not that Congress has enacted it, but that there was

the possibility of laws requiring full disclosure of who you give money to. Now, Justice Scalia was a big, big advocate of that. And that is one sense in which I got from Judge Gorsuch that he is actually very likely more conservative on disclosure questions. He stressed that, yes, there was this disclosure possibility, but he also stressed that there was a need to protect the privacy sometimes of people who were giving money so that they wouldn't be the subject of public disparagement or intimidation. And, you know, Justice Scalia said, basically, you give the money, you take your chances. So that was one way in which Gorsuch clearly is, I think, more conservative than even Scalia.

On all the issues involving reproductive rights and as much as they may or may not exist, he said that he does think there's a right to privacy, but all the areas in which he ticked off were not involving personal rights like that. They involved the right to be free from unreasonable search and seizure, the right to be free from having troops quartered in your home, which is the Third Amendment. They were not the kinds of things that people think about in the general public as a right of privacy. And when it comes to abortion rights, you know, the key case in that Roe v. Wade, of course, there was an interesting moment of testimony when Lindsey Graham was asking Gorsuch questions. Let's listen to that and then interested to hear what you made of it.

Had you ever met President Trump personally? Not until my interview. In that interview, did he ever ask you to overrule Roe v. Wade? No, Senator. What would he have done if he had asked? Senator, I would have walked out the door. Nina, what do you make of that? Because this comes after a campaign

where Trump said over and over and over again that he would appoint someone who would vote to overturn Roe v. Wade. And depending on the grade of how you say that, you know, that's generally something the president's campaign on, saying, you know, I will get a judge who does X, and then a judge comes along and says, well, of course, I would never make a promise like that.

Well, I'd have to tell you that until this campaign this year, presidential candidates almost always said, well, I don't have a litmus test. I obviously would like to have a justice who either supports or opposes Roe versus Wade, but I don't have a litmus test. In this campaign, both sides said they had a litmus test. Everybody had campaign, both sides said they had a litmus test. Everybody had a litmus test. Everybody had a litmus test. But this is one of those classic cases where being a judge really is different from being a politician. Politicians would really like to know how their nominees are going to rule.

And on the things that are nearest and dearest to them over the years, I would have to say they're more right than wrong. It's the other stuff that they tend to be wrong about. So, Nina, last question for you. You've been covering the Supreme Court for a while. You've covered a lot of these confirmation hearings. If you were a senator on the committee, how would you approach your question time? I mean, given the fact that judges are so hesitant to get into the details of specific issues or past cases, like what would you do? When you're a reporter covering these hearings, the minute, in this case, the Republicans start talking, you start listening with only half an ear because they're just playing defense and they're not going to make news unless something like Lindsey Graham trying to make sure that that I was dotted and that T was

crossed. But the Republicans have a job here, and that's to protect their nominee. And they did a good job of that. The Democrats were much savvier than usual, much better informed. I would have to say that Amy Klobuchar and Al Franken, Al Franken in particular, he's not a lawyer. And you really could see that he would be a very good trial lawyer. He made the nominee extremely irritated. All right. Well, Nina Totenberg, thank you for joining us. You have how many more hours of this do you think you have tonight? I hope only a couple. Okay. May the force be with you, Nina. Thank you. Bye-bye. Bye.

All right. So it's just the three of us now. We're going to work our way through the big moments of the day. A lot of things came up. Some big picture and philosophical, like how Gorsuch views the general idea of judicial independence. Others were much more specific. Elsa, you were going to tell us the tale of the frozen trucker. Oh, we're going to start with frozen trucker.

No, later. Later. Just as a specific. I'm so dying to talk about the frozen trucker. I know you're ready the tale of the frozen trucker. Oh, we're going to start with frozen trucker. No, later, later. Just as a specific. I'm so dying to talk about the frozen trucker. I know you're ready to talk about the frozen trucker. Gather around for the tale. And a man named Merrick Garland came up a lot. So a lot to dig into. You guys ready? Yes.

Ready. We're going to start with judicial independence. Okay. This was one of the first questions of the day. It came from the chairman of the committee, Chuck Grassley, Iowa Republican, because there was a lot of talk about Donald Trump nominated you. Would you be independent from Donald Trump? Let's listen to this exchange with Grassley and go from there. I'd like to have you describe in any way you want to what judicial independence means and specifically tell us whether you'd have any trouble ruling

against a president who appointed you. Gorsuch is prepared as he was. Forgot to turn on this microphone here. I'm sorry. So that's a softball, Mr. Chairman. I have no difficulty ruling against or for any party other than based on what the law and the facts in the particular case require. And I'm heartened by the support I have received from people who recognize that there's no such thing as a Republican judge or a Democratic judge. We just have judges in this country. But also, we kind of have Republican judges and Democratic judges, don't we? Yes, we have. Absolutely. And Senator Whitehouse, Sheldon Whitehouse from Rhode Island, talked about how if you look at a lot of the recent cases, the 5-4 decisions that kind of really got into his craw were decided 5-4, and all five are Republican-appointed

justices, and the four were Democratic-appointed justices. That said, this is a huge issue for Democrats. What Democrats want to know is if the question came before him, say, if there were a law that banned Muslims from the United States, would you declare that constitutional or unconstitutional? They want to know that Gorsuch would be able to consider that question completely devoid of any sense of allegiance to the man who nominated him to the Supreme Court. And because he wouldn't answer those kinds of questions specifically and only dwelled in sort of generalities about the independence of the third branch of government. I mean, it depends on whether that's those platitudes are enough. But one thing that he said over and over again, and maybe it's a platitude, maybe it's not,

depends on how you think about it. No man is above the law. That's something that he returned to how many times? Several times throughout several hours of the hearing. They asked him about, you know, what if Trump wanted to torture people? I think we actually have that clip from Lindsey Graham asking him about that. In case President Trump is watching, which it may very well be, one you did a good job picking Judge Gorsuch. Number two, here's the bad part, if you start waterboarding people you may get

impeached. Is that a fair summary? Senator, the impeachment power belongs to this body. Okay, that's even better. Would he be subject to prosecution? Senator, I'm not going to speculate. But he's not above the law? No man is above the law. Okay. No man. No man is above the law. That's something that Gorsuch said a lot today. Tamara, this hearing doesn't happen in a vacuum. I feel like there may have been more questions about this a day after we learned the FBI is looking into President Trump's presidential campaign

in terms of how it ties to Russian action to influence the election, but also after a period where President Trump has really aggressively, bluntly criticized federal judges. He has, going back to the campaign, he criticized Judge Curiel, who was overseeing the Trump University case, saying there was no way he could be fair because he has Mexican heritage and the candidate Trump wants to build a wall. He also has said things that are not nice about the judges that have blocked the travel ban. And Judge Gorsuch, leading into this hearing,

had said behind closed doors that the things that President Trump was saying about the judiciary were not cool. He said they were demoralizing and disheartening. He said that to at least two senators, Senator Blumenthal of Connecticut and Senator Ben Sasse of Nebraska. And so that gave some modicum of reassurance to some of the senators because it sort of signaled, OK, this guy could be judicially independent. But what Democrats wanted today was a lot more reassurance that he would be truly independent, would truly feel he owed no allegiance to Trump in deciding cases. And I'm not sure they got that today. But Republicans asked a lot of questions about independence because they thought that was an answer that would make him look good. And they wanted to kind of give him that as he called it to Grassley softball. Maybe he should have kept that as an inside thought. But so Republicans were asking a lot about independence. Democrats were trying to focus on some other things, namely, you know, how Gorsuch's rulings in the past have have framed the little guy versus the big guy. And as part of that, we learned about a frozen trucker.

Yes, the frozen trucker case, which has been mentioned, I am sorry, ad nauseum, not only throughout this confirmation hearing, but in the days leading up to the confirmation hearing. They even rolled out the frozen trucker at the center of the case. Wait, wait, wait. Is he like cryogenically frozen? No. Or is he? Who is this dude? Why was he driving a truck? Why was he cold?

I will introduce you to Alphonse Madden. So Alphonse Madden is a trucker or was a trucker, I'm sorry, in Illinois. And he was driving his truck, which was hitched to a trailer and encountered sub freezing temperatures. I've heard 14 degrees below zero, 17 degrees below zero. It was really, really cold. So it turns out that the brakes started freezing on his trailer and he just couldn't pull it safely. So he called his employer and told him, what should I do? And they asked him, please just stay with the truck and the trailer and we will send help over to you. Help took a long time to get there.

And it was cold. It was really, really cold. And throughout this experience, he started feeling numb in his feet. Then he started feeling pain in his torso. And at some point in the night, he fell asleep, only to be woken up by his cousin who called him. And when he was talking to his cousin, his cousin was like, your speech is totally slurred now. You don't sound right. He realized he had developed symptoms of hypothermia.

So we're joking about it because it came up a lot. But this was a serious situation. This was very, very serious. So he's thinking, what should I do? He calls his employer again. They said, help is on the way. Please do not leave the truck and the trailer. But he's thinking, I might die if I don't leave the situation.

So he unhitches the trailer and he drives the truck part away. Now, he gets fired by his employer later for abandoning the trailer. So he sues. And the 10th Circuit, this is the circuit that Judge Gorsuch sits on, basically found for him. However, Judge Gorsuch dissented in that case. He was the only one to do so because he felt that based on a strict textualist reading, or at least Democrats have characterized it as a rigidly strict textualist reading of the statute in question, that he should have been terminated. Textualist means just like following the letter of the law.

Right. The idea is interpreting the law based on the plain meaning of the words of the statute rather than interpreting it through, say, legislative history. So this is something that a lot of Democrats had a lot of questions and commentary about. Al Franken from Minnesota got into this a lot. Let's listen to what he had to say. To say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That's absurd. Now, I had a career in identifying absurdity. And I know it when I see it. And it makes me, you know, it makes me question your judgment.

Now, I have to say that Franken probably presented the most compelling confrontation about the frozen trucker case because he distilled it down to, look, I don't care about textualist versus what the rest of the judges felt was the meaning of this particular statute in this case. What this boils down to for me is whether your judgment was in question. What would you do, Judge Gorsuch, he asked during the hearing? What would you do if you were the trucker? Would you stay there and freeze to death? Or would you drive this unwieldy, unsafe, hazardous, frozenly breaking tractor behind you? What would you do? And Judge Gorsuch, you know, he kind of declined to state what he would do in that case. He just said that, you know, he felt bad for the

trucker, but his reading of the law was his reading of the law. So Democrats have used this case as an example for basically how Judge Gorsuch doesn't have a heart. Yeah. And trying to paint it into a bigger picture trend, saying that you're someone who sides with corporations instead of people, which, of course, fits into big political themes that Democrats want to talk about right now. Gorsuch responded to that at one point, saying, you're looking at one specific case. I ruled in a lot of cases over the course of my career. Exactly. And he would always follow up with a string site of cases where he ruled for, say, disabled individuals or Native Americans fighting for land rights. So he has a whole list of cases to prove that he does

find for the little guy once in a while. Senator, I know a case or two has been mentioned yesterday. Respectfully, I'd suggest that does not represent the body of my work. I've written 2,700, I've participated in 2,700 opinions over 10 and a half years. And if you want cases where I've ruled for the little guy as well as the big guy, there are plenty of them, Senator. And I have to say, the Democrats' obsession with the frozen trucker case is kind of illustrating Gorsuch's point. He's saying, look, if you look at the body of my case law over a decade on the 10th Circuit, you will find so many cases where I have found for the little guy. And the Democrats, by really only relying on one main primary case again and again and again, is kind of screaming out, we only have a few data points about this guy favoring big guys over little guys.

So it's kind of weakening their argument, I think. I don't know. Like, we all have written like thousands of radio stories, right? I feel like it would be weird to sit there and be like, I'm going to talk about this one story that you did from eight years ago and focus on it over and over again. I don't know. It must be hard. Like Nina talked about how Gorsuch was like really over scripted and kept going back to talking points. But like, it must be very hard to not want to respond emotionally at a certain point. But how bad do you want to be on the Supreme Court? Because the power of wanting to be a Supreme Court justice is probably pretty great.

You know, if I were going through a 10 hour confirmation hearing, I would try to be as disciplined as possible. I kind of don't blame him for being rehearsed and practiced and absolutely premeditated. He must have thought this through and they do murder boards on him, which is sort of like, you know, they throw him into mock trial. They basically, you know, try to replicate what the Supreme Court hearing would be like beforehand so he can practice. I would practice the blank out of this before I got to my account of it. I feel like this is the part where we should say that you are a recovering lawyer who has actually like clerked for a judge. Like you're a legit recovering lawyer. Am I still recovering? So I've recovered. So even though Gorsuch made very clear

early in the day that he was not going to get into the specifics of past Supreme Court rulings, much like basically every other Supreme Court nominee over the last couple of decades, every senator still wanted to ask about that. So they have to. Yeah. So let's talk about a few of the big ones. One of them, when you talk about politics and the Supreme Court, it always comes back to Roe v. Wade, the key historic Supreme Court case on whether or not states can outlaw abortion. So Chuck Grassley wanted to get this out of the way right away, and he asked Gorsuch about it very early in the day. Can you tell me whether Roe was decided correctly? Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent in the United States Supreme Court.

It has been reaffirmed. The reliance interest considerations are important there and all of the other factors that go into analyzing precedent have to be considered it is a precedent of the united states supreme court it was reaffirmed in casey in 1992 and in several other cases so a good judge will consider it as precedent of the united states supreme court worthy as treatment of precedent like any other. So Dianne Feinstein, the top Democrat of the committee, went next, and she honed in on that precedent question when she asked Gorsuch about this case. Do you view Roe as having super precedent?

Well, Senator, super precedent is a— In numbers. It has been reaffirmed many times. I can say that. Yes. Yes, dozens. Elsa, you're the lawyer in the room. Precedent.

And you're going to ask me this. Super precedent. I mean... What the heck is that? Why does precedent matter and why does it matter in Supreme Court context? Well, okay. Precedent obviously matters. It's this Latin term stare decisis because if you follow prior case law, it adds stability

to the law of our country. And it is a tradition that judges follow. And it's binding. Now, it's not to say that judges cannot veer from precedent, but they must do so with reason. It's not a prison if, you know, we've overturned cases in history. Brown v. Board was an overturning of Plessy versus Ferguson. So precedent is one of the guiding posts that judges use to decide cases. Now, the question is, what is super precedent? In the family of precedents, there's some precedent that's more powerful than other precedent. It's mega precedent. It's unclear to me, and maybe a legal scholar can write in and explain it in more detail what counts as super precedent. Feinstein seemed to want to box him in and saying, like, well, you know, if something's been cited X many times, it must be of super value.

I'm not sure that that's how one defines super precedent. But anyway, it's important to also mention that Gorsuch during his decade on the Tenth Circuit has never ruled specifically on a woman's right to have an abortion. So everyone was kind of extrapolating from his other cases and other writings to figure out, is this a guy who is going to overturn Roe v. Wade if given a chance? He wrote a book arguing against euthanasia and assisted suicide. And in that book, both pro-life and pro-choice groups have found clues convincing people on both sides that he would probably overturn Roe v. Wade if given a chance. One hot button issue that Gorsuch has ruled on is religious freedom, right? Because he was the author, he ruled on one of the earlier cases that

eventually became the Supreme Court Hobby Lobby decision. Right. Yes. The infamous Hobby Lobby case. So basically, that was a case where he ruled in favor of the plaintiffs, the Supreme Court Hobby Lobby decision? Right. Yes, the infamous Hobby Lobby case. So basically, that was a case where he ruled in favor of the plaintiffs, the owners of Hobby Lobby, who said that the Affordable Care Act's contraceptive mandate, requiring them to provide insurance coverage for contraception, impinged on their religious freedom. And in that case, Gorsuch agreed with the owners of Hobby Lobby that their religious freedom was impinged upon if they were to be forced to provide insurance coverage for contraception. And he has a line in a concurring opinion that he wrote where he talks about this idea of complicity. And I don't want to misquote it.

So I feel like we should Google it right now. Yes. Google complicity and Gorsuch. And OK, here it is. Fast Googler. Through the miracles of podcast editing. Here it is. All of us face the problem of complicity.

All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance, both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case. As the Greens explain their complaint, Basically, he's saying if you force these people to pay for contraception, you are forcing them to engage in wrongdoing and violate their religious tenets. In their minds.

In their minds. Senator Dick Durbin pressed Gorsuch on this today. Did you stop and think when you were making this decision about the impact it would have on the thousands and thousands, if not millions, of employees if you left it up to the owner of the company to say, as you told me, there's some kind of family planning I like and some I don't like? Senator, I take every case that comes before me very seriously. I take the responsibility entrusted in me in my current position, very grave. I think if you ask the lawyers and judges of the Tenth Circuit, am I a serious and careful judge? I think you'll hear that I am.

And there was one other ruling that the Democrats kept bringing up that was Citizens United, which has become a really big factor in the political world in terms of something that the Democrats just do not like. Tam, can you bring us up to speed on the Citizens United ruling? Yeah, Democrats actually hate it. It came out in 2010 and tossed out the corporate and union ban on making independent expenditures. So basically, it allowed corporate money into campaigns. This is the ruling that President Obama basically criticized to the face of Supreme Court judges

during the State of the Union, right? Yes. The constitutional law scholar and now former president was not a fan. One of those really big breaking of political norms in the pre-Trump era. What will it mean for the presidency? So anyway, this came up a lot. Let's listen to one exchange with Sheldon Whitehouse in Gorsuch. Is it any cause of concern to you

that your nomination is the focus of a $10 million political spending effort and we don't know who's behind it? Senator, there's a lot about the confirmation process today that I regret. A lot. Yeah. A lot.

Yeah? A lot. When Byron White sat here... And Byron White was his mentor. It was 90 minutes. He was through this body in two weeks, and he smoked cigarettes while he gave his testimony. There's a great deal about this process I regret. I regret putting my family through this.

But to my question... Senator, the fact of the matter is, it is what it is, and it's this body that makes the laws. And if you wish to have more disclosure, pass a law and a judge will enforce it, Senator. Basically what Gorsuch is saying to White House here is the ball is in your court. Congress, do your job.

If you are so obsessed with people disclosing how much they spend and who they spend on, you mandate that that happens. So don't get mad at me, Gorsuch says. You guys write the law. So one other thing from that exchange that we need to talk about, and that is like the repeat appearances of Byron White in this hearing. White was the only other Supreme Court justice from Colorado. He came up a lot like he was some sort of folk hero, like Byron White can make a free throw.

Byron White smokes cigarettes in his confirmation hearing. Byron White is so cool. Byron White smokes cigarettes in his confirmation hearing. Byron White is so cool. Byron White had these really big hands. And when he typed, when he would hunt and pick with his index fingers, he could type faster than me. Most interesting man in a row. I just want to, it was a little bit endearing. Obviously, Gorsuch reveres Byron White. This is the lay justice whom he clerked for. He was a giant. He is a giant in Gorsuch's mind. But White's ghost lingered throughout this confirmation hearing. There were some other funny moments, too. Tamara, Ted Cruz and his 80s pop culture

fandom came back again with a vengeance. Can you can you bring us up to speed on this moment? I don't even know why he started asking about this, but he was trying to get at the meaning of life and everything. It was a reference to The Hitchhiker's Guide to the Galaxy. What is the answer to the ultimate question of life, the universe, and everything? 42. It was like the first question Ted Cruz asked Gorsuch, and I guess he understood the inside joke or knew that it was a beloved book within the Gorsuch family, and he wanted to throw Gorsuch a nice softball at the beginning of the questions.

And then Lindsey Graham got his Lindsey Graham on today, too. Should we just listen to that and go from there? I really want to congratulate the president to pick you. Quite frankly, I was worried about who he'd pick. Maybe somebody on TV. But President Trump could not have done better in choosing you. Do you think he meant like a TV judge,

like Judge Judy, or just like anybody on TV, like Omarosa? Or like Judge Napolitano, or like some other judge analyst on the shows. It was a pretty funny moment. So that was kind of like the can't let it go of the hearing, I guess. What happens next for Neil Gorsuch? I assume he goes home and sleeps at some point and then he's back tomorrow. He's got every senator gets 20 minutes tomorrow. And then after that, a whole list of outside witnesses come in and testify about him.

So he has at least another full day, if not two more days. I think it will go through Thursday, actually. Either one or two more days of hearings. This is going to move pretty quickly, though. Senate Majority Leader Mitch McConnell has said very confidently that he wants Gorsuch voted before Senate goes away for the Easter recess. So within a matter of weeks, and that's pretty confident given the fact that as the Senate rules are written right now, he's going to need at least eight Democrats to not vote for Gorsuch finally, but to vote to proceed with Gorsuch's nomination to kind of break the filibuster of

needing 60 votes to get a final vote. Right. That's correct. So eight Democrats. Now, there are several Democrats who are running in states that Trump won. So there is incredible pressure on several Democrats to just let Gorsuch through. He's an eminently qualified nominee. But even if the Republicans fail to amass 60 votes, there's this so-called nuclear option. McConnell could decide to change the Senate rules. So it would take only 51 votes to confirm Gorsuch rather than 60. However, to invoke the nuclear option, you need 51 votes in the Senate to do that. It's a pretty extreme move. And he may not have all the votes. There's an open question whether he would garner 51 votes. However, when

Mitch McConnell says that Judge Gorsuch will be seated on the Supreme Court, this is a man who does not make promises lightly. I feel like he's gamed it out already. So Tamara, with all of the ups and downs and drama of the Trump administration, he could achieve, President Trump could achieve a very big goal within the matter of weeks. Yeah, this would be, you could possibly say his first really, if this happens, his first big win, the first time that he's been able to see something from beginning to end. Basically, Judge Gorsuch has been the high point of President Trump's presidency thus far. And Judge Gorsuch has been putting in the kind of performance that would make a President Trump's presidency thus far. And Judge Gorsuch has been putting in the kind of performance that would make a President Trump feel very comfortable. And meeting Mickey in the process.

That's right. My dog ended up on Gorsuch's Twitter feed and POTUS's Twitter feed. I don't know. My dog being used as propaganda like that, I feel a little bit concerned. I mean, when I see your dog in the hallway, I want to stop and pet it too. Right. And if we can't all pet dogs, then where has humankind gone? That's true. I don't want to live in a world that's that partisan. But speaking of big things that President Trump is trying to do, before we go, let's talk health care. House Speaker Paul Ryan is planning on calling the big Republican health care bill to a vote Thursday night. This morning, President Trump came to Capitol Hill to rally Republican support for the bill. And that's something he really needs to do

with nearly 20 Republicans saying they're currently a no vote. Only a few more would kill the measure's chances. Tamara, you were there covering President Trump's visit today. What did he talk about? Well, an actually update. NPR and our member stations have been tracking the positions that various members of the House and Senate are taking. And our tally is up to 22 no's. You only need 21 Republicans to vote no on this bill because all of the Democrats are going to vote no. But don't declare it dead just yet. A lot of these members want to vote for this bill in one way or another. They want to see changes to it. So that's not to say it's totally a lost process. No, no, no, no. But the point is it's getting close here. And President Trump had to go make a sales pitch. Yeah. And they they want

to get to yes. Even the people who say they are a hard no want the president to get them to yes. So he came up to the Hill. He went to the House Republican conference meeting. We could not go in there because that's a closed door meeting. But when members emerged from that meeting, what we learned is that President Trump basically presented them with a pretty stark reality. He said, if you don't support this bill, then we could lose the House and Senate in 2018. You could lose your reelection bid. If we don't do this thing, then our voters are going to ask, why did they send us all here? Was he like directly politically threatening members?

He apparently said, Mark Meadows, I'm coming after you. Now, Mark Meadows is the head of the House Freedom Caucus. He is currently a no on the bill who would love to find a way to get the president to get him to yes, but he can't seem to find that way. And he was one of President Trump's earliest supporters. Now, you ask Meadows, were you threatened in there? And he said, oh, no, that wasn't a threat. That was a joke. He was joking. But he called out a number of members by name like, hey, thank you for coming along. Or, hey, Pete King from New York, who's ambivalent about this bill. You know, you and I both grew up in Queens. so good at where he gets behind closed doors and he is jovial and pokes people in the ribs a little bit, but says it with a smile. And he was working that room. He was trying to get them on board. And many of them are persuaded by the idea that there will be political hell to pay if they don't keep this promise that some of them have been making since 2010. Right. This bill has been

around for seven years now and for seven years it has been making since 2010. Right. This bill has been around for seven years now and for seven years it has been the Republican rallying point. Repeal this bill. So Trump comes up to Capitol Hill to make the sales pitch. Last night, though, we saw the language of some changes to the bill. Can you walk us through big picture some of the tweaks? Yes. The American Health Care Act, the Republican bill, was already going to repeal a bunch of tax increases that Obamacare put into place, taxes on the wealthy mostly. Well, now it will do it sooner, a year earlier. So starting right away, the tax cuts kick in. It will also allow states, if they want to, the option of requiring able-bodied Medicaid recipients to work.

It will also give states other flexibility in how they implement Medicaid. But one thing that it specifically does, and this is a change, is it says starting basically as soon as this becomes law, any state that was contemplating expanding Medicaid under the previous Obamacare structure, they won't be allowed to do that. So these are all things that speed up the repeal side of this bill and seem like they make conservatives, Freedom Caucus type Republicans happy. The problem is if this bill gets through the House and goes to the Senate, that makes the problem harder because there's a much smaller wiggle room on the Senate side. Only three Republicans can kill this bill. And there are a

lot of Republican senators on the moderate side saying we need to be more gradual about this. Though there is also a moderate change. It creates a really big, I think it's about $150 billion fund. It's basically a bunch of funding to try to solve some of the problems that this bill creates that makes it hard for people to afford their health care. So we have new language. We have a very narrow margin of error for Republicans. All this comes to a head on Thursday night when there is a scheduled vote. What happens after that? Does it pass? Does it fail? What happens next? We will dig into all of the healthcare politics

during our weekly roundup on Friday, which is one day later than when it usually appears in your feed, you might be thinking. But you know what? It's a busy week. We want to make sure we include everything that happens. So that does it for this episode.

A reminder in between our podcast, we are filing reports on the real radio. You can hear them. Remember radio. You can hear them. Remember radio? You can hear them by tuning to your local public radio station by listening on NPR One and also at NPR.org. We are giving every single incremental update to all this stuff, including that tracker that Tam mentioned, where you can see where your representative is on this bill right

now. And can I also just say that it is possible that although I just described a bunch of amendments, there will actually be even more amendments before this thing goes to a vote because the president is still negotiating. Because as I said yesterday, this is a week for our timestamp at the top of the podcast. Absolutely. And another plug, there is another excellent NPR podcast out there that Elsa Chang primarily works for now, Planet Money. We stole her back for today.

Elsa, what's going on at Planet Money these days? Well, I just finished contemplating what a trillion dollars means. Like what it looks like or what you can buy with it? Well, you know, Trump says he wants to spend a trillion dollars on infrastructure. So what does that buy you? Like how many dams is that? How many miles of roadway is that? How many new bus terminals is that?

And so I did a piece that would basically price that out. And the bottom line is a trillion dollars goes away like that. And I use New York City as a laboratory. You could deplete that money in a blink of an eye. You could buy the Yankees with a billion dollars. But you could. Even the Yankees. I'm Scott Detrow.

I cover Congress. I'm Tamara Keith. I cover the White House. And I'm Elsa Chang. I used to cover Congress, but now I'm at Planet Money. Thank you for listening to the NPR Politics Podcast.