[Update: On Thursday, as expected, the Senate voted to change the rules to end the filibuster on Supreme Court nominees, clearing the way for a confirmation vote on Neil Gorsuch Friday.]
Short of a bipartisan deal, it looks like the Senate will go “nuclear” and confirm Neil Gorsuch to the US Supreme Court this week – blowing up a Senate rule that protects the minority party's input on such high-stakes decisions.
The rule change would allow all future Supreme Court nominees to be confirmed with just a majority vote. To some, this portends a nuclear winter for governing: further empowerment of the presidency, politicization of the High Court, a Senate that’s losing its “cooling off” function, and by virtue of all of this, democracy in danger.
This would be “a serious blow to our constitutional powers and our checks and balances,” says Raymond Smock, director of the Robert C. Byrd Center for congressional history at Shepherd University in Shepherdstown, W. Va.
Others, however, see the potential maneuver to sweep aside the Senate’s 60-vote threshold for Supreme Court nominees as far less momentous than the tempestuous debate over this issue would suggest.
“I think democracy can do just fine,” writes political historian Julian Zelizer, of Princeton University in New Jersey, in an email. Speaking of the rule, known as a filibuster, he adds: “Remember the filibuster is not part of the Constitution. It is a practice the upper chamber adopted.”
Without it, he says, decisions might be made more efficiently in Congress.
Passions run deep in the Senate over the filibuster’s role, and they aren’t clearly divided along party lines, although the run-up to this point has been marked by severe partisanship.
How we got here
Decades of disputes over judicial appointments – from the Democratic torpedoing of “originalist” Supreme Court nominee Robert Bork in 1987 to Republican blocking of federal judges during the Obama administration – form an important backdrop to today’s bitter feud over who should fill the seat vacated by another originalist, Justice Antonin Scalia, who died in February 2016.
Democrats criticize Judge Gorsuch for evasiveness in his hearings and siding with “the big guy” over the “the little guy” in his rulings. But their bitterness over Republican treatment of President Barack Obama’s nominee last year overshadows everything.
Republicans refused to hold even a hearing for Judge Merrick Garland, a de facto filibuster that amounted to a stolen seat on the court, maintains Sen. Jeff Merkley (D) of Oregon. The senator held the floor for more than 15 hours Tuesday night – the kind of speechifying that used to typify filibusters before senators simply made it a routine matter of clearing 60 votes to end debate.
The Republican response is “get over it.” Democrats lost the election. President Trump has a right to his nominee, who they believe has an impeccable record and temperament – and indeed is supported by notable Democrats outside the Senate, as well as three Democratic senators so far. In 2006, the Senate confirmed Gorsuch's appointment as a federal appeals court judge without dissent.
Still, with Republicans holding only a narrow 52-seat majority in the Senate, there won’t be enough Democrats to get to 60 and end debate – killing the nomination – unless Republicans decide to “go nuclear” and unilaterally do away with the threshold to end debate on high-court nominees.
That move would be a significant escalation of the Democrats’ decision in 2013 to sweep away the 60-vote threshold for all presidential appointments – including cabinet secretaries and federal judgeships – except the Supreme Court.
Judicial arms control
In the past, senators of both parties have found a way to avoid just this type of judicial arms race, hammering out a kind of bipartisan cease-fire in 2005.
“All of this is completely avoidable,” says former Sen. Mark Pryor (D) of Arkansas, who was among the “gang of 14” that worked out the 2005 compromise. “It was all a matter of leadership and political will and it still is.”
He says that Senate majority leader Mitch McConnell (R) of Kentucky and minority leader Charles Schumer (D) of New York should take a pause to deescalate. “There’s no reason this nominee has to be done this week or next week or next month.”
Several senators have actually been trying to work out a deal. Democrats reportedly want Republicans to keep the filibuster in place for future Supreme Court justices if Democrats allow a vote on Gorsuch to go forward. No deal so far, though. Only three senators from the gang of 14 are still serving in the Senate, among them John McCain (R) of Arizona.
There’s no deal so far because “there’s much more partisanship, there’s much more outside influence…, and you don’t have the kind of C-O-M-I-T-Y that we’ve had,” the Arizonan said, spelling out the word as if it were somehow a taboo.
Nuclear winter – or just a cooling off?
While he and his fellow Republicans stand firm on supporting Gorsuch, some of them are extremely worried about doing away with the Supreme Court filibuster – and blame Democrats for forcing their hand.
Senator McCain echoes several of his colleagues – as well as many Democrats – when he warns of a president being able to seat a Supreme Court justice with just 51 Senate votes – a situation that he says will lead to more ideological justices and a politicized high court.
“That’s not the way the Senate was designed to work,” he said. While nuking the Supreme Court filibuster will not “destroy” the chamber, “it will hurt the Senate forever.”
It would cede more power to the president – something both parties like and hate, depending on who has the White House. It would also erode the Senate’s capacity to “advise and consent” on nominees. Essentially, the Senate's majority party would advise and consent, not the Senate body, and if that party were the opposite of the party in the White House, it could indefinitely block nominees.
Historians like Mr. Smock worry that Senate elections would turn into referendums on the Supreme Court, and that a politicized court would undermine trust in the judicial system. As for the filibuster, it may not be in the Constitution, but its use goes back to 1789.
“It has a stupid name,” says Smock, “but it’s the one device that allows unlimited debate, and allows the Senate to put a brake on when the House is trying to run away with something."
Unlike the House, which is run by majority rule and designed to be the closest to the people, the Senate is meant to be a place that cools popular passion. Senators serve longer terms and represent entire states, not gerrymandered districts. They represent broader constituencies and in the early years were often referred to as “ambassadors” of the states.
“There will still be a lot of the old Senate,” says former Senate historian Don Ritchie.
That’s the stance now being taken by the Republican leadership. Indeed, they say that getting rid of the Supreme Court filibuster simply returns the Senate to the era before the rule was routinely used to block federal judgeships.
“This whole filibuster thing is an innovation,” Sen. John Cornyn (R) of Texas told a small scrum of reporters in front of his office doors on Tuesday. “In some ways, we’ve just come full circle.”
Sen. Claire McCaskill (D) of Missouri similarly downplays a blowing up of the 60-vote threshold for the high court. A post-nuclear Senate “will look much like the Senate has looked for the last several years, because we’re really only changing it for a nomination process.”
She plans to vote against the nominee, despite tremendous pressure to vote for him in a state that Trump carried.
On a slippery slope?
But would chipping away at the filibuster really stop at the Supreme Court? Many senators on both sides fear they are on a slippery slope to getting rid of the legislative filibuster, allowing bills to sail through on a party-line vote, just as they do in the House. Tremendous pressure from outside groups could push them there, senators say.
In an impassioned floor speech last week, Sen. Bob Corker (R) of Tennessee warned about this, lambasting both sides for lacking the “maturity” to stand up to outside pressure and put the institution first.
“If we continue on the path we are on right now, the very next time there is a legislative proposal that one side of the aisle feels is so important, they cannot let their base down, the pressure builds, then we are going to invoke the nuclear option on a legislative piece.”
He spoke about the pall that settled over the Senate in 2013, after the first nuclear option. “I will tell you this: There were days — not days, months — where people who had normally worked with people on the other side of the aisle just kind of shut down.”
This week, Senator McConnell said there was no sentiment among Republicans to change the filibuster rule for legislation, and said he was committed to keeping it in place. He is, however, also committed to getting Judge Gorsuch confirmed.
• Staff writer Henry Gass contributed to this report.