HL EU Committee publishes Brexit: devolution report

The House of Lords EU Committee has today (19 July 2017) published its report ‘Brexit: devolution’ which examines the impact of Brexit on the devolved institutions.

The key message of the report is Brexit presents fundamental constitutional challenges to the United Kingdom as a whole. Therefore, the UK, Scottish and Welsh Governments, and – ‘if it is formed’ – the Northern Ireland Executive, will have to set aside their differences and work constructively together to achieve an outcome that ‘protects the interests of all parts of the UK’. The report submits that no durable solution will be possible without the consent of all the nations of the UK.

The report’s conclusions for Northern Ireland included (see chapter 3, para 93-99):

  • Due to Northern Ireland’s ‘distinctive’ geographical, historical, political, and constitutional circumstances, it will be ‘profoundly affected’ by Brexit. There will be a significant impact, including on cross-border trade, the agri-food sector, energy, transport, fisheries, access to EU labour, healthcare provision, tourism, and police and security cooperation.
  • It appears the Brexit debate has ‘undermined political stability and exacerbated cross-community divisions, contributing to the collapse of the Northern Ireland Executive and the calling of an early Assembly election’. This, together with the Conservative-DUP confidence and supply agreement at Westminster, and with no nationalist MPs having taken their seats in the new Parliament, ‘has created new uncertainty, underlining the fragility of the political settlement in Northern Ireland’.
  • Political stability in Northern Ireland must not be allowed to become ‘collateral damage’ of Brexit.
  • The specific circumstances in Northern Ireland give rise to unique issues that will need to be addressed during the Brexit negotiations.
  • The unique nature of UK-Irish relations necessitates a unique solution. The report welcomed the European Council’s commitment to seek “flexible and imaginative solutions”, and asks the UK Government to work with the EU negotiators to identify and outline such solutions as a matter of priority.

It is interesting that the EU Committee acknowledged that the use of the phrase ‘special status’ in respect of Brexit is a politically contentious term for unionists, who do not want Northern Ireland’s place in the UK to be undermined. The Committee did however advocate consideration for the specific circumstances in Northern Ireland, which give rise to unique issues. The report finds that these issues, including the issue of the border on the island of Ireland will need to be addressed during the Brexit negotiations.

 

The Repeal Bill Cometh.

The ‘Great Repeal Bill’ promised by the Prime Minister in October 2016 will be published today, Thursday 13th July.

It will repeal the 1972 European Communities Act, and repatriate EU law into British law, thereby ending the general supremacy of EU law.

The Bill, described by the Prime Minister as an “essential step” to EU withdrawal, was the centrepiece of the Queen’s Speech.

When published, its short title will be different as value-laden terms such as ‘great’ are not permitted in legislative titles. It is expected to be titled the European Union (Withdrawal) Bill.

Once it is introduced to the UK Parliament, it will be scrutinised through debates in the Houses of Commons and Lords, and more detailed line-by-line scrutiny in select committees. Amendments can be made to the bill. Both the Commons and the Lords will need to approve the bill, with any amendments, before it can be passed.

Even if the Bill is relatively short, the scrutiny process may take some time if previous examples of EU bills are any guide – remember the legislation to ratify the Maastricht Treaty?
This follows on from the white paper published by the Department for Exiting the European Union on 30 March 2017 which set out the objectives for the proposed Great Repeal Bill:

  • Repeal the European Communities Act (1972) on the day the UK leaves the EU,
  • Replicate some 20,000 pieces of EU law onto the UK statute book,
  • Convert directly-applicable EU law (EU regulations) into UK law,
  • Preserve all the laws that have been made in the UK to implement EU obligations,
  • Ensure the rights in EU treaties that are relied on directly in court by an individual will continue to be available in UK law,
  • Historic European Court of Justice case law will be given the same binding, or precedent, status in UK courts as Supreme Court decisions, and
  • Create powers to make secondary legislation under statutory instrument procedures.

The White Paper commits to ending the supremacy of EU law in UK law. It will no longer be the case that every law passed in Westminster has to be compatible with those passed in Brussels.

It also says that past judgements of the European Court of Justice (ECJ) will be downgraded in status after Brexit. ECJ judgements will have no role in the interpretation of laws passed by Parliament after the UK has left the EU. Pre-Brexit ECJ judgements will continue to have some role in interpreting pre-Brexit EU law, but the UK Supreme Court will be able to overrule these decisions in some cases.

The role of post-Brexit ECJ judgements on pre-Brexit laws is still unclear.

Issues might arise with the two ‘D’s: delegated powers and devolution (remember the devolved states in all of this Brexit mess?)

Regarding delegated powers, the White Paper submitted that a “prohibitively large amount of primary legislation” would be required to make all the necessary changes to the body of EU law. Therefore, it will “provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU”.

The UK Government has acknowledged there will need to be some constraints on how ministers can use secondary legislation to change the law. The problem is that the White Paper is vague about what these constraints will be. For instance, the White Paper acknowledges that ministers’ new powers will have to be time limited, but does not actually discuss what these time limits will be.

The UK Government therefore is seeking a “discussion between Government and Parliament as to the most pragmatic and effective approach to take” on powers.

The issue of devolution poses another headache. The White Paper committed to “intensive discussions with the devolved administrations” about how policy powers repatriated to the UK from the EU will be distributed between the various states which comprise the UK.

Per the Queen’s Speech, the Bill committed to “maintaining the scope of devolved decision making powers immediately after EU-exit” and “having intensive discussion and consultation with devolved administrations on where lasting common frameworks are needed”.

Following the Speech, Prime Minister Theresa May appeared to admit that the consent via Sewel motions of the devolved parliaments may need to be sought before the passage of the Bill. Indeed, the Scottish Secretary David Mundell has recently echoed his previous assurances that a Legislative Consent Motion would be required for some parts of the Bill which are relevant to devolved competences. Other Brexit may also require Legislative Consent Motions.

Confused? You are in good company. For all this has raised the prospect that one or more of the devolved administrations could block the Bill if it does not propose that repatriated powers do not flow directly to them. And even better, there is uncertainty over the extent to which this vote could derail the Bill.

Why bother with such a Bill, it might be asked. Well, EU law covers areas such as environmental regulation, workers’ rights, and the regulation of financial services. Without the Repeal Bill, when the UK withdrawals from the EU, all these rules and regulations would no longer have legal standing in the UK, creating a ‘black hole’ in the UK statute book and leading to uncertainty and confusion. By carrying EU laws over into UK law, the UK Government plans to provide for what David Davis, Secretary of State for Exiting the EU, calls ‘a calm and orderly exit’ from the EU, while giving the UK Government and UK Parliament time to review, amend or scrap these laws in future.

Essentially, The purpose of the Bill is to provide certainty and continuity, ensuring the same rules and laws apply immediately after Brexit wherever possible, and supporting a smooth transition.

MPs will not have an opportunity to vote on the Bill until the autumn. This is perhaps good news for the Conservative government, which knows it will face stiff opposition to the bill. Indeed, it feels as though all parties in the Commons (sans the DUP, who have pledged to support the UK Government in all matters Brexit as part of their confidence and supply agreement) will unite in some form to make the Bill’s progress through Parliament hell for the Prime Minister.

The Labour Party, for example, has vowed to try to wreck the Brexit process by voting against the flagship “Repeal Bill”, unless Theresa May makes dramatic changes.

The Opposition usually gives the Government opportunity to change a Bill between its second and third reading, which would have postponed a Commons flashpoint until next year.

Yet Labour is arguing that government ministers have plenty of time to make those changes before second reading in October.

Keir Starmer, the party’s Brexit spokesman, said recently Labour would attempt to defeat the legislation in just three months’ time. Labour disagrees with most of the Bill’s contents, and is demanding the Bill includes full protection of rights for British workers and consumers, of environmental standards and the devolution of powers across the country. It is also determined to prevent a Government power grab through the use of delegated ‘Henry VIII powers’, allowing future changes without proper Parliamentary scrutiny.

Labour does accept it will not be able to defeat the Bill at its second reading, anticipated to be in October, without a revolt by some Conservative MPs, given Ms May’s working Commons majority of 12. However, it is hoping to play a game of ‘divide and conquer’ – the party believes it will be very difficult for the ten Scottish Conservative MPs to support the Repeal Bill without strong guarantees on devolution.

And it is not just Labour who is promising a difficult path for the UK Government. The Liberal Democrats, who after all fought the general election on a pledge to stage a second referendum on Brexit, also said they would make the passage of the Bill “hell”.

The publication of the Bill today is merely the first step in a long and complex journey for the Conservative Government. The real Parliamentary showdown will not be today. It will be come the autumn.

Brexit and the Bar Council: the Great Paper Debate

I have written a few times about the ongoing uncertainty regarding the outcome of the UK’s referendum on continued membership of the EU, and the legal sector.

Between the issue of whether UK lawyers would be qualified to work in the EU, and UK lawyers thus seeking re-qualification in Ireland, to the issue of the CJEU and whether justice was a priority for the British government during negotiations (it is not, I believe), there constantly have been queries regarding UK law, and how it will operate post-Brexit.

It would seem that the legal sector is growing tired of the lack of official clarification, and wants some certainty restored and answers given.

The Bar Council of England and Wales has said the British government should seek to clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law merely ‘scratches the surface’ of the issue. A valid point, as the White Paper has a little section (‘little’ is an appropriate description; it is just four pages long) entitled ‘EU Law in the UK’. Only, it happens to be an annex at the end of the entire White Paper.

In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the Bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.

For example, the Bar Council said the White Paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’ Conceding this might be considered a ‘rather technical point’, the Bar Council argued whatever provision the Great Repeal Bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.

Moreover, it said there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.

The Bar Council said it is currently preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the British government’s thinking on matters.

The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.

Safeguards proposed include that powers to enact delegated legislation will be used only ‘so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and ‘to implement the result of the UK’s negotiations with the EU’.

 

The Bar Council submitted: ‘…we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’

It will be interesting to see what the Bar Council’s paper proposes. No doubt it will be detailed, and will aim to provide more clarity and certainty on the issue. This just goes to show how complex the negotiations will be, and indeed, how unprepared the British government appears to be.

Human rights working group – Bill of Rights for Northern Ireland.

For the past couple of months, a group of QUB students, including myself, have been part of a working group on human rights in Northern Ireland. We are focusing particularly on the need for a Bill of Rights in Northern Ireland, as provided for in the Good Friday Agreement 1998.

The Good Friday Agreement 1998 included the commitment that the upon the establishment of a Northern Ireland Human Rights Commission, it would be asked:

“…to consult and to advice on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experiences. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.”

This commitment was subsequently reflected in the Northern Ireland Act 1998.

As the 19th anniversary of the Agreement recently came and went  against a backdrop of continued political stalemate and inertia, we feel it is time for the Bill of Rights to be prioritised.

A Bill of Rights for Northern Ireland, which would take into account the particular circumstances of Northern Ireland, would ensure legal recognition and protection of the human rights of all our citizens. Human rights has become topical here since the very announcement of the March election, let alone after the smoke cleared and the parties sought to interpret the results delivered by the electorate. As the political situation rumbles on, with legacy cases and Irish key issues, and as the outcome of Brexit remains uncertain, it is time for a Bill of Rights to be realised for the benefit of all.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

It’s been an utter pleasure to work with fellow students on human rights in NI, and I am looking forward to our future work!

We have written a blog post for Rights NI, an online platform for the discussion of human-rights based issues, entitled ‘QUB student working group calls for renewed consideration of NI Bill of Rights‘.

We are currently working on a report which will merge together our individial research and research papers on the subject. It will ultimately conclude that it is time for a Bill of Rights to be realised and implemented.

I am tasked with overseeing the report, and have spent the a couple of evenings after work merging the documents together. It has been fascinating work, and I cannot wait to see where we end up.

US Supreme Court blocks Arkansas from multiple executions.

The US Supreme Court has concluded a dramatic day of legal debate over Arkansas’ unprecedented plan to execute eight prisoners in just 11 days.

The Supreme Court declined to permit the state to go ahead with Monday night’s scheduled executions, in what amounted to a major victory for the condemned inmates’ lawyers and anti-death penalty campaigners. The outcome is certain to give weight to the other pending cases, and confidence to the defense lawyers of the remaining five death-row inmates who still face execution, starting with Stacey Johnson and Ledell Lee on Thursday of this week.

The Supreme Court took several hours to reach its decision, finally announcing at 11.50pm that it had declined to lift a stay on the execution of Don Davis, 54, imposed earlier in the day by the Supreme Court of Arkansas. The judgment brought the number of condemned prisoners who have now been spared the audacious execution schedule set by Republican State Governor Asa Hutchinson to three. The State Governor has found himself in a rush to use a batch of the lethal injection drug midazolam before it expires at the end of the month. Had the Governor’s proposed schedule gone according to plan, it would have marked the most intense schedule of executions in the US in more than 50 years. Even double executions on the same day are rare; the last time it was attempted, by Oklahoma in 2014, it led to a “bloody mess”.

Scott Braden, an attorney for Davis, said the US Supreme Court Justices had heard that Davis had been denied proper independent counsel on the question of his mental health. According to his defence counsel, Davis has an intellectual disability, a history of head injuries, brain damage, fetal alcohol syndrome, and other mental health conditions.

In a statement, Hutchinson said:

“While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last-minute appeals and efforts to block justice for the victims’ families.”

Hutchinson’s schedule had seemed certain to proceed, after a ruling from the Eighth Circuit Appeals Court in St Louis, Missouri, which overturned an earlier temporary injunction imposed by a federal judge. That had opened up the possibility that at least six executions might still go ahead between now, and the end of April.

The Eighth Circuit Appeal overturned the ruling by federal district judge Kristine Baker, in which she questioned the reliability of midazolam, the sedative that is used as the first chemical in Arkansas’ triple lethal injection protocol.

“If midazolam does not adequately anaesthetise plaintiffs, or if their executions are ‘botched’, they will suffer severe pain before they die,” Baker wrote in her opinion.

Until the decision came down from the US Supreme Court, officials with the Arkansas Department of Corrections had been undertaking preparations for the execution to go ahead. Davis had been given his final meal, witnesses had been put in place in the death chamber, and the execution team was being readied.

Of course, Hutchinson’s schedule has merely been limited, not curtailed in its entirety. Attention now swings to the next set of executions on Thursday and beyond. The governor’s spokesperson underlined the determination of the state to press on with its grim timescale. The spokesperson has said the state “will continue, on Thursday, on Monday and then Thursday”, referring to the schedule of death warrants that allows for two executions to take place on each of the next two set dates, and one on 27 April.

But lawyers for the next prisoners set to be executed are already gearing up for an intense legal battle. The influential Innocence Project has joined local defence lawyers in Arkansas to call for DNA testing in the case of Johnson, and the ACLU has also now filed on behalf of Lee on grounds of DNA testing and innocence, and intellectual disability.

As a new death warrant would have to be set for Davis and Ward, with the process of final review of their cases having to start from scratch, it is understood there is not time to reschedule their executions this month in time to avail of the midazolam before its expiration date.

It must be recalled that due to strict distribution controls imposed by more than 30 drug companies in the US and abroad, it is now very difficult for states which carry out the death penalty to acquire medicines for use in state executions.

It remains to be seen what unfolds for the other men currently scheduled for execution. It also remains to be seen whether the death penalty is slowly but surely scheduled for its own end in the USA.

 

Confirmation process of a US Supreme Court nominee.

Today marks the start of the most convoluted Supreme Court confirmation battles in history. Judge Neil Gorsuch, President Trump’s pick to replace Justice Scalia, will appear before the US Senate Judiciary Committee, and endure questioning as to his eligibility to become the country’s 113th Supreme Court justice.

I recently wrote about the issues behind the nomination process, namely that the Democrats might seek to block the nomination following the Republicans’ successful campaign to block President Obama’s nominee last year.

As the hearing gets underway, I thought it might be useful to examine the process itself, and consider how today’s process will compare to other Supreme Court confirmations in recent years.

Confirmation Process

The appointment and confirmation of Justices to the US Supreme Court involves following several steps laid down within the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States, and must face a series of hearings during which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee. The Committee can vote to send the nomination to the full United States Senate. Confirmation by the Senate enables the President to formally appoint the candidate to the court.

In modern times, the confirmation process has garnered some attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee’s track record aligns with the group’s views.

The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on the Constitution. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.

At the Senate, a simple majority vote is required to confirm or to reject a nominee. However, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favour of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon –  the Senate has explicitly rejected just twelve Supreme Court nominees in its history. While Senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered.

Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House. The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office. The date of commission determines a Justice’s seniority. A ceremony is then held, in which the Justice must take the Constitutional Oath, used for every federal and state officeholder below the President, and the Judicial Oath, used for federal judges before entering into the execution of their office.

Past Confirmation hearings: the Bush Administration

President George W. Bush’s first opportunity to make a Supreme Court nomination came in July 2005, when Justice Sandra Day O’Connor announced her intention to retire. This was the first vacancy on the Court in over a decade. Bush nominated D.C. Circuit Judge John Roberts on 19th July, 2005. While his nomination was pending, Chief Justice William Rehnquist, who had been battling thyroid cancer, passed away on the 3rd September.

With Justice Rehnquist’s passing, Bush then had to rethink his strategy for filling two vacancies on the Supreme Court. He decided to withdraw Roberts’ nomination to be an Associate Justice, instead announcing him as his nominee for Chief Justice on the 5th September. The Senate Judiciary Committee met across the 12th – 15th September for Judge Roberts’ confirmation hearing, and one week later, the Committee voted 13-5, with three Democrats joining the Republicans, to send him to the full Senate. The Senate voted to confirm Roberts on the 29th September 2005, just in time for him to join the Court before the start of its 2005-2006 term the following week.

After deciding to nominate Judge Roberts to be Chief Justice, Bush initially selected White House Counsel Harriet Miers – a lawyer who served as Bush’s personal lawyer before he became President – as the nominee for Associate Justice on the 3rd October. As a result of a campaign by conservatives who wanted a nominee with a demonstrated conservative record and judicial experience, Miers withdrew her nomination weeks later.

Bush then announced his pick of Third Circuit Judge Samuel Alito on the 31st October. Judge Alito’s hearing was not held until 9th – 13th January. Less than two weeks later, on the 24th January, the Senate Judiciary Committee voted 10-8 to send him to the full Senate. Some 24 Senators, -including one Sen Obama – attempted to lead a filibuster to block Judge Alito’s confirmation, but they were unsuccessful.

The Senate ultimately confirmed Alito by a vote of 58-42 on the 31st January 2006, with four Democrats joining the Republicans.

(And as fate would have it, Obama as President later expressed regrets about this filibuster attempt when Senate Republicans announced they would not confirm a nominee to the vacancy left by Justice Scalia’s passing during Obama’s final year in office.)

The Obama Administration

President Barack Obama’s first opportunity to pick a Supreme Court justice came when Justice David Souter announced his retirement in 2009. Obama selected Second Circuit Judge Sonia Sotomayor, making the announcement on the 26th May.

Judge Sotomayor’s hearing was held across the 13th – 16th July. Highlights from the hearing include Republican senators grilling Judge Sotomayor about her ‘controversial‘ views, including her claim that appellate courts “make policy”, and that she believed “a wise Latina woman” would “reach a better conclusion than a white male” judge. Two weeks later, the Senate Judiciary committee voted 13-6 to send her to the full Senate. Republican Sen. Lindsey Graham joined Democrats on the committee in that vote. Nine days later, on the 6th August 2009, the Senate voted to confirm Sotomayor by a vote of 68-31, with nine Republicans voting for her confirmation.

The following year, Obama had another chance to nominate a Supreme Court Justice. He chose his Solicitor General, Elena Kagan, to replace Justice John Paul Stevens, announcing the nomination on the 10th May 2010.

Obama administration senior adviser David Axelrod later recounted the story of Justice Scalia approaching him at an event shortly after Justice Souter announced he would retire in 2009. Scalia apparently said to Axelrod: “I have no illusions that your man will nominate someone who shares my orientation … But I hope he sends us someone smart.” He continued, “Let me put a finer point on it … I hope he sends us Elena Kagan.”

Kagan’s hearing took place across 28th June to the 1st July. Three weeks later, the Senate Judiciary Committee voted 13-6 to send her to the full Senate. Once again, Republican Senator Lindsey Graham joining the Democrats in the vote. Two weeks later, the Senate voted 63-37 to confirm her. Five Republicans and two Independents joined the Democrats.

As the Obama administration came to a close, it seemed unlikely that another vacancy would occur on the Supreme Court. Then on the 13th February 2016, the news broke that Justice Scalia had died.

The upcoming Presidential election thus suddenly took on a new level of significance as Senate Republicans vowed to keep the seat open so that the next President could fill it. Nevertheless, Obama nominated Merrick Garland, Chief Judge of the D.C. Circuit, but Senate Republicans refused to allow the nomination to move forward.

And so here we are today, awaiting the first day of Committee hearings for Judge Gorsuch. Whether the cross-party support in voting to send a candidate to the full Senate as witnessed during both the Bush and Obama administrations will be witnessed is the key question.

Judge Neil Gorsuch, and nomination confirmation.

One of the most convoluted Supreme Court confirmation battles in history will finally reach the U.S. Senate on Monday 20th March, 401 days after the death of Justice Antonin Scalia left a vacancy that has spanned two presidencies and spawned two nominees.

Federal Appeals Court Judge Neil Gorsuch, President Trump’s choice to be the country’s 113th Supreme Court justice, is set to face several days of harsh questioning from Democrats, still enraged at the Republican-controlled Senate’s refusal to consider President Barack Obama’s nominee last year. Then, Senate Republican leader Mitch McConnell vowed the seat would remain vacant through the Presidential election, a promise he kept despite Obama’s compromise nomination of Judge Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and a relatively moderate jurist.

Judge Gorsuch’s nomination was destined for a fight not only because of the Republican block on Judge Garland, but also because of the very President who nominated him – one who promised to employ litmus tests on abortion and guns, who largely outsourced the initial nomination process to the conservative Federalist Society and Heritage Foundation, and who has attacked federal judges who ruled against him, both as a businessman and as President.

And so Judge Gorsuch will face the multi-day Senate Judiciary Committee nomination hearing on Monday, in what Republicans probably hope will be a quick process to confirmation by the time Congress leaves for its Easter recess.

Judge Gorsuch’s supporters are anticipating several lines of attack from Senate Democrats, mainly concerns about decisions he made on women’s issues like the Hobby Lobby case, and his apparent bias towards business over regular people in labour-related cases.

Judge Gorsuch has been preparing for the hearings with help from lawyers in the Justice Department and the White House counsel’s office. That includes undergoing mock hearings, as well as extensively revisiting his own opinions and different areas of the law that could surface during the hearing.

Something to look out for starting from Monday: the Democratic senators who hail from states where Trump was elected. These are the most likely swing votes on Judge Gorsuch’s nomination. None of them are out of bounds for Republican outside groups trying to put the heat on Democrats.

Interestingly enough, the Judicial Crisis Network – an American conservative political campaign organisation – has so far apparently spent close to $5m of a planned $10m advertisement buy in support Judge Gorsuch. There is an expectation that around $15 to $20m will be spent by outside GOP groups on similar advertisement buys.

The key question is how far will the rest of Senate Democrats go with their opposition. Left-leaning advocates are vowing a big fight, and they have energised Democratic constituents on their side to pressure lawmakers to stay tough.

What is clear is that the nomination process will prove to be interesting: it is obvious that there will be Democrats who will seek to thwart President Trump, and it is equally as obvious that Republicans are willing to invoke the ‘nuclear option’ -changing Senate rules in relation to the 60 vote threshold for confirmation.