The Nuked Filibuster - a Return to Advise and Consent

supreme-court

The filibuster, in connection with Supreme Court confirmations, no longer serves the intended purpose of encouraging consensus. Instead, it only serves to obstruct, which unfortunately seems to be the order of the day.

We all know how we got here. It started with the rejection of Robert Bork, the last nominee outright rejected by the Senate. That was 30 years ago, but Conservatives, and as Domenico Montanaro points out, Republicans still aren’t over it. Bork’s name has even become a verb — being “borked” means “to have one’s nomination to high office be subject to zealous political attack.”

Montanaro also reminds us that after Bork, nominees became coached on how to say as little as possible in confirmation hearings. Which brings us to the other grievance Conservatives and Republicans also continue to nurse, the rejection of Miguel Estrada.  Estrada’s nomination to a federal judgeship on the D.C. Circuit in 2003 was blocked by a Democratic filibuster. Democrats believed he was not forthcoming enough because he didn’t provide “documents and information about his legal views.”

And the Democrats also have legitimate grievances. As also reported by Montanaro, back in 2013, nominee after nominee put forth by President Obama was thwarted by the Republican minority. The filibuster has taken on new meaning as it was increasingly used over the last years by both parties. The Republicans’ use of the filibuster against Obama nominees caused Senate Democrats, under Harry Reid’s leadership, to nuke the filibuster for presidential appointments, except Supreme Court nominees — something Reid said would change the U.S. Senate forever.

And, as the Democrats constantly remind us, they are unhappy that Judge Merrick Garland, President Obama’s choice to replace Justice Antonin Scalia, wasn’t even really considered by the Republican-controlled Senate.

But the Democrats ignore what my friend and former RedState colleague Dan McLaughlin reminds us — that the Garland nomination was a rare event in the modern Senate. Garland was nominated in a presidential-election year by a president whose party did not control the Senate. Only once in U.S. history (in 1888) has the Senate acted before Election Day to confirm a justice who was nominated in the last year of a presidential term by a president of the opposing party.

I was appalled when the Democrats nuked the filibuster for all presidential nominees except Supreme Court nominees in 2013. But having thought about this a lot and having looked at the history of Supreme Court nominations, it is likely that the Republican’s completion of the elimination of the filibuster for nominations by nuking it for Supreme Court nominees as well, will remove the current political obstruction and help return the Senate to its Constitutional role of “Advice and Consent.” Without the filibuster, it will be very hard to obstruct nomination.

I’m not alone in this view

During an interview with David Greene on NPR’s Morning Edition, Leonard Leo, President Donald Trump’s Supreme Court adviser, executive vice president of the Federalist Society for Law and Public Policy Studies and a veteran of Supreme Court nomination battles, expressed the same opinion.

LEO: You know, I’m not really as concerned about that [nuking the filibuster] as other people are. And the reason is because really, the invocation of this rule is just going to take us back to a situation where we have simple majority up or down votes for Supreme Court nominees. And that’s really what’s happened through the 210-year history of the Senate. So basically, what will happen, I think, is what happened, you know, with Judge Bork or with Justice Thomas or with – or with Sotomayor or Kagan. We had basically situations where there was agreement on the amount of time that would be spent on debate, and then there was a simple majority up or down vote.

So, you know, Justice Thomas, for example, only got 52 votes. Justice Alito only got 58. You know, there was no filibuster. Nobody thought of having one. And I think if you look at what’s happened with Supreme Court confirmation votes over the course of time, we’ve had a lot of balance without having to have filibusters and without having to have 60-vote thresholds.

GREENE: You sound much more optimistic about the bipartisanship in the Senate than most people who are serving in the Senate.

LEO: Well, I think generally speaking, senators don’t like to take extreme action. They like to do things in a relatively balanced way. And for the most part, you’ve seen some bipartisanship with regard to Supreme Court nominations, seven senators voting for Kagan, similar number voting for Sotomayor. So I think we’re going to be in a good spot whether this rule is – whether this rule is adopted or not.

Actually, Justice Sotomayor received nine Republican votes for confirmation and Justice Hagan received five. But the important point is that without the filibuster, Supreme Court nominees will be treated more fairly, and hopefully more respectfully. They still might be smeared, but with only a simple majority required, perhaps the minority will perform their “advise and consent” in a more civil manner.