By David Harsanyi
0Monday, April 3, 2017
It looks like Senate Democrats have the 41 votes they
need to block the nomination of Neil Gorsuch to the Supreme Court. This means
majority leader Mitch McConnell is almost surely going to use the nuclear
option to confirm him. Which is a shame.
We can only assume this is what Chuck Schumer intended.
The minority leader knows full well that, one way or another, Gorsuch would be
on the court. Perhaps the nuclear option was fait accompli, but with nothing to
show for the 2016 election thus far, Republicans need a tangible victory.
Schumer probably also believes Republicans would nuke the
judicial filibuster on the next Supreme Court pick, anyway. He’s probably
right. So what downside is there for him in forcing the GOP to put the
filibuster out of its misery? The fate of the justices remains unchanged. And,
when back in power, Democrats would be free to function without the judicial
filibuster. Schumer would almost certainly nuke it, as well. In the meantime,
he forces the Republicans to officially kill a procedure that Democrats have
been undermining for 15 years, at least.
It was Democrats, after all, who hyperpoliticized the
process of nominating judges. Let’s not go back to Bork or Thomas. But after
the 2000 election, George W. Bush nominated eleven appellate court nominees—two
of them, as a gesture of bipartisanship, were liberals. When the Senate
unexpectedly flipped to Democrats (because of the defection of Jim Jeffords),
the Judiciary Committee did not return the favor, refusing to give hearings to any
of the conservative nominees while moving the liberal ones forward.
When the Senate went back to the GOP, Democrats pulled
off the first successful partisan filibuster of judicial nomination, targeting
Miguel Estrada, a nominee for the D.C. Circuit court. Priscilla Owen, William
H. Pryor, Janice Rogers Brown, and many others were never seated.
Ten years later, when similar tactics worked against
them, the Democrats changed the Senate rules in 2013 to eliminate the 60-vote
procedural threshold on lower court judges. Senate Majority Leader Harry Reid,
the man who once argued that weakening the Senate filibuster would “destroy the
very checks and balances our Founding Fathers put in place to prevent absolute
power by any one branch of government,” was upset that Republicans had adopted
the Democrats’ playbook.
It’s worth remembering that when Reid broke the
filibuster, he claimed the GOP could have avoided the nuclear option if they’d
simply confirmed the seven appointees they’d been blocking. According to
Politico, McConnell conceded to those demands to save the filibuster. At the
last moment, Reid insisted that Republicans surrender the threat of
filibustering any Obama’s
appointments in the future. Which is as good as killing it.
We should also note that Reid, when he was confident that
Hillary Clinton would be president, bragged about laying the groundwork for
doing away with the filibuster for Supreme Court nominees. In a “wide-ranging”
interview about his “legacy”—which, in reality, was handing the Senate and
Supreme Court to the conservatives—he said:
“I really do believe that I have
set the Senate so when I leave, we’re going to be able to get judges done with
a majority. It takes only a simple majority anymore. And, it’s clear to me that
if the Republicans try to filibuster another circuit court judge, but
especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not
just talking about it. I did it in changing the rules of the Senate. It’ll have
to be done again.”
What kind of political party is going to preserve the
filibuster in these conditions? Not one that hopes to keep its majority.
No one in Washington is innocent, of course. Watching
hypocrites make earnest arguments for and against the exact same positions
within a few months’ time is the norm. It’s certainly the norm when it comes to
the filibuster, on both sides. In a better world, a “gang” of Senators would
figure out some deal to save the filibuster on SCOTUS nominees—perhaps trading
the Gorsuch nomination for a 10-year agreement to avoid the nuclear option. In
today’s environment, though, prudence is punished and sectarianism is rewarded.
Yet, whereas Republicans’ case to stop Merrick Garland—in
effect, the same as a filibuster in the minds of most voters—was one that both
parties had at one time adopted, the arguments against Gorsuch are
preposterous. The most prevalent is to accuse him of following the law rather
than rendering judgement based on class, ethnicity, or gender of victim. Forget
process, this an argument against the Constitution. The truth is no
conservative judge would do. And there was no way to avoid this moment.
The filibuster is—or, I guess it was—used preserve the (small c) conservative disposition of the
Senate. A filibuster diffuses political power and compels the majority to offer
concessions to the minority—or to keep the status quo. For a while there, most
politicians protected the filibuster; not for idealistic reasons, I imagine,
but because they understood power was not perpetual and it might be useful for
them in the future.
That was until they believed history was theirs. Many
liberals—Ezra Klein used to boast about his anti-filibuster position on Twitter
bio—campaigned to eliminate this protection when they thought the presidency
would never be lost. Then again, the Left has always been more prone to support
direct democracy, including campaigning to get rid of the Electoral College
long before the results of 2016. Meaningless repetition of the nonexistent
“popular vote” is only the latest in this destructive trend. The end of the
filibuster is a manifestation of this work. Congrats.
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