The United States Senate is headed towards an historic moment this week. The nomination of Judge Neil Gorsuch has gone to the floor for debate. As of right now, the Republicans do not have enough votes to impose cloture on the debate. It is expected that on Friday, Senate Majority Leader Mitch McConnell will introduce a vote to change Senate rules to allow cloture to be passed with a simple majority, clearing the way for a floor vote on Gorsuch. By the time we all sit down for dinner on Friday evening, Gorsuch will be confirmed as the next Associate Justice of the Supreme Court, and the Senate will begin a new era — one that is leaving many pundits uneasy.
It’s important to reiterate just how this happened — how this Supreme Court fight will end up resulting in abolishing the filibuster for Supreme Court nominees.
Early in 2016, Justice Antonin Scalia died. President Barack Obama fulfilled his constitutional duty and named a replacement. However, the Republican members of the Senate failed to fulfill their constitutional duty, refusing to even meet with President Obama’s nominee, Judge Merrick Garland, much less give him a floor vote, or a floor debate, or a Judicial Committee vote, or a Judicial Committee hearing. The Republicans blocked Obama’s pick completely, in violation of their sworn duties as members of our upper chamber. They claimed it was because no Supreme Court nominee should be considered in an election year. This argument was nonsense, debunked countless times in the media. But it worked. Using their own brand of parliamentary extremism, Senate Republicans stole a Supreme Court pick from a sitting president to hold in reserve for when a Republican should occupy the White House. This fact becomes more apparent when one considers that had Hillary Clinton won the 2016 election, the Republicans had a plan ready to deny her Supreme Court nominees for the duration of her term.
Let that sink in for a moment. One of the major political parties in this country was willing to let at least one Supreme Court seat remain vacant for years for partisan advantage. The coming showdown over the judicial filibuster is a direct response to this brazen violation of the rules of our republic. The response from the Democrats has been understandable.
There is no way around the fact that Neil Gorsuch is an illegitimate pick for the Court. His qualifications notwithstanding, were the Democrats to simply capitulate to his nomination, without doing all within their means to block it, they would be ratifying Senate Republicans’ unconstitutional actions, giving them carte blanche for further violations in the future. It would be nice if there were a proper deterrent to such bad behavior on the part of the Republicans, but filibustering their party’s nominee is about the best that can be done.
The Republicans do not have to vote to amend the cloture rule. They could just let Gorsuch’s nomination die. That would be the right thing to do. The Democrats, on the other hand, have little choice but to filibuster this nomination. They, and their former president, have been victim to a gross violation of the constitution, one which the founders probably never anticipated. There have to be ramifications.
No Senate in the history of the country has been amenable to altering the cloture rules, yet they change them occasionally anyway. Before 1917, debate could continue indefinitely, as long as a Senator held the floor. Rules were then changed to require a two-thirds majority to impose cloture. In 1975, the threshold for cloture was reduced to three-fifths, and a Senator was no longer required to take the floor and actually talk their way through a filibuster. A note passed to the majority leader was enough. In 2013, in the face of Republican obstructionism, the rules were changed again to exempt Executive Branch nominees and lower court nominees, leaving legislative and Supreme Court filibusters in place.
The Senate is unique in legislative bodies around the world in that a supermajority is required to impose cloture on debate. In every other legislative body, simple majorities are enough. In fact, they should be in the Senate. The cloture rule is not in the Constitution. It’s something Senators themselves invented out of whole cloth in the Senate’s early days. Pundits and politicians are nervous about the impending abandonment of a political rule that has been in existence for so long. The outcomes are somewhat unknown. But I say somewhat because it is only the Senate that does this. There are hundreds of national and state houses and parliaments that have gotten on just fine with simple majorities for hundreds of years, and the universe hasn’t folded in on itself.
There has been debate in the media about whether or not Senate Minority Leader Charles Schumer should use the filibuster now, or save it for when a liberal Justice such as Ruth Bader Ginsburg leaves the bench. I don’t see how that does anything but delay the inevitable end of the judicial filibuster. Should Schumer choose the use the filibuster now or with the next nominee, the Senate will still vote to end the filibuster, and President Trump will get his picks.
Every Senator that has shown up on this news this week has lamented the coming changes — even Republicans, who will receive the immediate benefit. That’s because every Senator knows the value of a tool like the filibuster in the inevitable time in which their party is in the minority. In the long-term, the end of the judicial filibuster is the end of yet another opportunity for comity and bipartisanship, and will lead to more ideologically extreme Supreme Court Justices. But it’s important to remember that this is happening because the Republican Party has made it their mission to destroy the rules that have made our government work for over 200 years. It was they who chose to exploit all the loopholes in our democracy and turn politics into a zero sum game. As has been happening quite a lot lately, they are reaping what they sowed.