Good-bye to the Senate Filibuster of Supreme Court Nominations

Liam Donovan

National Review

3rd April 2017

You have to hand it to Chuck Schumer — he was dealt a brutal hand, but the man is putting on, if not a master class, a seminar in misdirection and obfuscation. In the blink of a November eye, the New York Democrat went from majority leader in waiting to de facto leader of The Resistance on Capitol Hill, the only man standing between Republicans and a full complement on the Supreme Court. First, Schumer sought to undermine the legitimacy of the nomination, in what amounts to a cheeky nod to last year’s Republican blockade.

The dark cloud of Russian meddling hangs over this president, you see, so it just wouldn’t be prudent to confirm his pick until we get answers. Like the GOP maneuver it echoes, it is a superficially plausible rationale with a certain internal logic, but ultimately a fig leaf meant to conceal a utilitarian political play. How do we know this? Thanks to the parallel case, which is recommending a filibuster of Gorsuch on the the grounds that this is an seat: The vacancy occurred under President Obama’s watch, he tapped a judge with unimpeachable credentials, the GOP Senate abdicated its constitutional obligation, and this is therefore Merrick Garland’s seat.

So would they block Garland if Trump had nominated him? It can’t be both. Neither party has a monopoly on bad faith, but the advantage of McConnell’s gambit was its simplicity. The rule, however contrived, lent itself to relentless message discipline.

Republicans took great care not to indulge a debate on the process of the nomination, much less the merits of the nominee. It’s here where Schumer’s approach fails: Democrats are lodging an ideological complaint, wrapped in an appeal to principle, inside a procedural red herring. Schumer’s muddled pretext has flushed his members down an agonizing logical cul de sac.

Take Claire McCaskill, emerging from a “vortex” to announce that she would join a filibuster, despite being up for reelection in 2018 in a state that went for Donald Trump by 19 points less than six months ago. Consider the tortured lede of her piece at Medium. com: This is a really difficult decision for me.

I am not comfortable with either choice. While I have come to the conclusion that I can’t support Neil Gorsuch for the Supreme Court — and will vote no on the procedural vote and his confirmation — I remain very worried about our polarized politics and what the future will bring, since I’m certain we will have a Senate rule change that will usher in more extreme judges in the future. In a neat bit of sophistry, Schumer has injected into the narrative bloodstream the ahistorical notion of a threshold for nominees to the high court.

Not only is this clearly false, it conflates the confirmation vote itself with the procedural hurdle to “end debate” and proceed to consideration. There is no requirement for Supreme Court nominees, formal or otherwise, and it is exceedingly rare for a vote on a nominee to be preceded by a vote on procedure. Traditionally the decorum of the Senate dictates that members grant “unanimous consent” to limit debate, thereby waiving their right to object and allowing a given matter to receive an up or down vote.

In fact, of the 29 Supreme Court nominations considered by the Senate since the advent of the modern filibuster, only three have faced a vote for purposes of invoking cloture: Abe Fortas, who was already on the bench, but whose elevation to chief justice was rejected on a bipartisan basis William Rehnquist, who successfully ran the gauntlet first as a associate justice and later to be chief and Samuel Alito, the first nominee to face scrutiny in a nuclear environment, as the judicial filibuster had nearly been eliminated months earlier, spared only by a bipartisan “gang” of institutionalists. Clarence Thomas, whose infamously bilious hearings culminated in the narrowest confirmation margin in history, avoided a procedural blockade. Even Robert Bork wasn’t “borked” on cloture.

But this is all academic, right? The staggered thresholds are such that voting to end debate is tantamount to supporting the nominee. Actually, no — while the sample size is minuscule, both instances of successfully invoked cloture resulted in different vote counts on final passage. In Rehnquist’s case, two liberal Republicans who voted to end debate ultimately voted against his ascension to be chief justice.

Alito’s nomination earned the support of three Senate Democrats, a figure Gorsuch may well eclipse. But no fewer than 16 others crossed over on cloture, acknowledging the judge’s qualifications without endorsing his judicial philosophy. A decade (and several wave elections) later, most of those 16 Democrats are long gone.

But a handful remain: Tom Carper of Delaware, Maria Cantwell of Washington, and Bill Nelson of Florida. All voted to give Alito an up or down vote on principle despite opposing his confirmation. Each has already pledged to deny Gorsuch that same courtesy.

So barring a cave by Democrats or an unlikely deal freelanced by a GOP rump, the filibuster for Supreme Court nominations will be a thing of the past. Democrats will gratify their base with a pyrrhic show of force. But one way or another, Gorsuch will sit on the Court, and he’ll be approved on a bipartisan basis.

The only question is whether this futile tantrum marks the culmination of Senate dysfunction or the beginning of a new era.,.
 

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