The End of the Supreme Court Filibuster: Good Riddance

Chuck Schumer rolled the dice and he lost.  True to his word and showing some spine for the first time in a long time, Mitch McConnell in a vote along party lines eliminated the 60-vote threshold for confirming Supreme Court Justices.  Despite what one thinks of this rule, I like others here believed that blocking Neil Gorsuch was the wrong battle for Schumer to make this stand.  Gorsuch will not alter the ideological balance on the Court.  Replacing a Ginsburg, Breyer or Kennedy- the next three most likely retirements- would alter that balance and if Schumer had a brain and principle, that was his battle.

Article II, Section 2 of the Constitution does not establish a 60-vote threshold to confirm a Supreme Court or any judicial nominee.  The cloture requirement is a rule unique to the Senate and was established in 1917 in response to Woodrow Wilson’s agenda.  There are two proffered reasons.  The first is that cloture defended the rights of the minority party in the Senate.  With respect to McConnell’s action, the minority party’s views and rights are still respected as concerns legislative actions.  Their views are also respected as they are not excluded from debate and using their powers of persuasion.  And by its very nature, the Senate is minority-oriented.  The 25 least populous states account for 1/6th of the US population, yet 50 Senate seats.  If the Democrats truly want to make a difference, then perhaps some Senate wins in Kansas or other states is the better route.

The second reason is that the Senate is supposed to be a more deliberative body.  Again, the Constitution makes it such by establishing a 6-year term.  The layer of deliberation added by the cloture rule has, however, become a tool of political payback and obstruction.  From 1917 to 1975, 67 votes were required to invoke cloture.  That number was dropped to 60 in 1975 although there existed the Mansfield Rule which asserted that if someone failed cloture, the issue was “dead” and the Senate moved onto other business.  Yet from 1789 to 1917- 128 years- no such rules existed for either legislative initiatives or judicial nominations.

Most experts trace abuse of the rules to 1986 when the Democrats decided on a concerted effort to block Reagan appointees.  Despite these efforts, Reagan got 88% of his judicial nominees confirmed at all levels of the judiciary.  That number dropped to 79% for George H. W. Bush.  Clinton fared about the same at 77% although some of that was due to Clinton not making nominations and foot dragging on his part.

To break the descending spiral of obstruction, George W. Bush offered the Democrats an olive branch by nominating Roger Gregory- a Clinton recess appointment- to the DC Circuit.  He was promptly rejected.  If there is any doubt about who is the most abusive of the system, the Democrats rejecting a nominee who was basically nominated by one of their own is sufficient justification.  They upped the ante further when they held firm on blocking Miguel Estrada’s nomination to the DC Circuit.  As a result of Democratic obstruction, only 67% of Bush’s nominees in the judiciary were confirmed.

Further evidence of the Democrats being more obstructionist by using the filibuster against judicial nominees is born out in another fact.  They have used the filibuster 10 times since 2003 (not counting Gorsuch) and have successfully blocked five nominees.  That is over a 5 year period.  Conversely, over an 8-year period under Obama, the GOP has filibustered three nominees and successfully blocked two.  It was when Harry Reid changed the rules in 2013 that opened the door for McConnell’s action today.

There will likely be hard feelings as a result.  Already, the Leftist blogosphere is rife with articles decrying the action.  The Nation has declared that Mitch McConnell killed democracy.  The crybabies at DailyKos are lamenting the fact their bluff was called.  Some Republicans who voted to change the rules did so reluctantly knowing that they may be in the minority party in the future.  History shows that control of the Senate changes hands, on average, every eight years.  If that average holds true, that would be 2023.

Going forward, the effect will differ regarding whether government is unified in one party or not.  In a unified situation such as that which exists today where a Republican president has to deal with a Republican Senate, it changes the calculus with respect to nominees.  The tendency to obstruct is diminished because the value of obstructionist tactics are diminished.  There are still delaying tactics and tools left such as “the hold” and “blue slipping.”  Regardless, one great effect is that special interest groups will likely be less invested in taking down nominees through over-the-top rhetoric, demonization, dirt-digging, or just general douchebaggery designed to tarnish a nominee.  Instead, their efforts will likely be directed at legislative races where they rightfully should be.  Of course, this will not stop these groups from voicing displeasure, but they are less likely to expend money on an effort they know will now fail.

It may also allow a president to be more bold in their nominations knowing they now only need 51 instead of 60 votes to get their person confirmed.  This may allow them to think outside the box.  Not a single Justice today has any criminal defense history as one example.  As a criminal defense lawyer, one is likely to have won a case that helped a truly unsavory character- an act that could torpedo any nominee under the old rules.  Nominating an elected official rather than a sitting Appeals Court judge is another example.

Conversely, in a divided government there would likely be more reaching across the aisle to get a nominee confirmed.  If a president needs the support of some members of the opposition party, that scenario is obvious.  The only alternative is to nominate someone and have them twist in the wind until the next round of elections.  In other words, the alternative is to have their nominee suffer the same fate as Merrick Garland.

In 2003, President Bush proposed some ground rules for confirming members of the Judiciary Branch, including the Supreme Court.  First, judges would have to notify the president of their intention to retire one year prior to retirement.  Of course, that does not address situations in the case of sudden death or illness.  Second, the president would make a nomination within 180 days, a hearing would have to occur within 90 days and an up/down vote within 180 days of the nominations.

Given the fact that presidential transitions and administrations have lists of names of potential judicial nominees at the ready prior to a vacancy, this proposal makes sense.  However, the times should be shortened with a nomination made within 60 days of a vacancy (instead of 180), a hearing within 90 days and an up/down vote within 30 days of Judiciary Committee action.  These rules would have to be approved by the Senate since it is not the Constitution or legislation that produced the mythical 60-vote threshold.  Provided McConnell and Schumer can agree on them, to ensure compliance going forward maybe then it should require 60 votes to change the rule.  This would prevent future Senates from breaking the bargain.  And the Senate is in charge of their own rules and this can easily be done.

This clearly allows ample time for investigation and questioning while maintaining some of the delaying tactics in extreme cases (Gorsuch was NOT an extreme case).  And if there was not a Biden rule before, it certainly exists now and will be the standard going forward no matter who retires or sits in the Oval Office.  There should be one modification: if the vacancy occurs within 180 days of a federal election, then the Biden rule is invoked.  If outside the 180 days, then the proposed rule takes effect and the nominee is given their day before the Senate.  Since Garland was nominated on March 16, 2016, he fell outside the 180 days and would have had his day in court.