Why We are Going to Miss the Ability to Filibuster Supreme Court Nominees.

Early last year, when the Senate was 
considering the nomination of Neil Gorsuch 
to the Supreme Court, I posted a long entry, 
explaining the workings of the filibuster in 
the Senate. You can read it at at the link.

The filibuster. It is one of the things that sets the U.S. Senate apart other legislative bodies. It is a beautiful thing, really. Or it used to be. The “nuclear option” changed all that.

First, President Obama, in 2013, tired of being unable to get many of his cabinet and lower court judicial appointees approved, consulted with then Senate President Pro Temp Harry Reid. Together, they decided to implement the nuclear option to remove the impediment of the “60 vote rule” which was preventing them from getting Senate approval of their appointees.

Why do that? They couldn’t get enough votes — 60 — to end Republican filibusters of their appointments of cabinet members, U.S. District Court judges, and Justices on the Courts of Appeal. So, to hell with it. They changed the rules to allow them to get their appointees seated with only 51 votes.

In 2013, when faced with the threat of the nuclear option to clear the way for Obama’s appointments, then Minority Leader, Mitch McConnell said,

“Breaking the rules to change the rules is un-American. I just hope the majority leader thinks about his legacy, the future of his party, and, most importantly, the future of our country before he acts.”

Then, in 2016, at the end of his term, following the death of Supreme Court Justice Antonin Scalia, Obama was unable to get the Senate to even give a hearing to his pick to fill the seat, which was ultimately filled by Trump’s pick, Neil Gorsuch, but only after utilizing, again, the nuclear option to change the rules to allow appointment of Supreme Court Justices by only 51 votes.

According to the Washington Post,

After McConnell justified his filibuster-ending “nuclear option”  [to appoint Neil Gorsuch to the Supreme Court] by saying it would be beneficial for the Senate, Sen. John McCain (R-Ariz.) said this: “Whoever says that is a stupid idiot.”

McConnell is no idiot. He is a clever man who does what works for him in the moment, consequences be damned.

Back in 1994, McConnell lamented to the conservative Heritage Foundation that Republicans hadn’t used the filibuster enough: “I am a proud guardian of gridlock. I think gridlock is making a big comeback in the country.”

No kidding.

Here’s Why the Filibuster Is Important

It required the President to appoint consensus candidates. Candidates who weren’t too far right or too far left; candidates who could garner the support of at least 60 Senators . . .

Right now, a simple majority of the senators is all that is needed to appoint the next Supreme Court Justice. Without McCain, Republicans have 50, Democrats (plus 2 Independents) have 49. Dems need at least 2 Republican Senators to vote with them, but it’s not even clear that the Democrats can count on all their number to stick together. Trump has promised to announce his nominee on June 9.

We, all citizens of the United States, regardless of party, regardless of how far right or left we are, must be assured that the confirmation of extremist judicial appointees can be blocked and insist on–at the very least–moderate or centrist candidates, and at the very least make certain that we not allow our judges to be a rubber stamp for the radical right or the radical left.

We need a judiciary that reflects the ideals of all Americans, not just a few. We need judges whose agenda will not be focused on undoing unions, women’s reproductive rights, strides made in anti-discrimination laws, marriage equality, and the list goes on and on.

With a Democratic majority in the Senate we can do that. We may not be able to delay the selection of the nominee to replace Justice Kennedy until after the mid-terms or until a new Senate takes over, but we can definitely be ready for the next one.

I know it gets into the weeds a bit, trying to wade through the voting requirements in the Senate. Let’s try to simplify it so you can see why it’s important and how, in my opinion, it’s going to dramatically damage the social fabric of the United States.

The way it was.

In the Senate, if there were 41 Senators who did not like a presidential appointment to his cabinet, to the US District Courts, to the US Courts of Appeal, or the Supreme Court, they could block the appointment via filibuster.

Essentially, they’d just stand up and talk, and talk, and talk, and if the other side couldn’t muster 60 votes to end the filibuster, the nomination would die on the floor. If the filibuster was broken by a vote of 60 Senators to end the debate (called cloture), the matter would proceed to the floor of the Senate where it would take a mere majority vote (51, assuming there are 100 voting Senators) to confirm the nomination.

Even though it’s been called “the 60 vote rule” its misleading. Sixty votes are needed to end debate, not to pass measures.

Finding Consensus

The effect was pretty amazing, though. It required the President to appoint consensus candidates. Candidates who weren’t too far right or too far left; candidates who could garner the support of at least 60 Senators, in order to be confirmed. And this has had a stabilizing effect on our courts. By and large (and there are exceptions) Justices have been appointed who have an agenda or big political ax to grind. We have had justices who, regardless of their political affiliation have generally been able to stay true to the Constitution, to a sense of fairness, and to the overall tenets of justice for all.

Okay. All ends of the political spectrum have occasionally been unhappy with the Court’s opinions. That happens. It is to be expected.

But now that the nuclear option has done away with the ability to filibuster virtually any presidential appointment, the path is cleared for the appointment of highly ideological justices who may be willing to allow their ideology to steer their judicial rulings.

Just think. If Obama and Reid had not pulled the nuclear option on lower court justices and presidential appointments, Trump would have had a very different cabinet! What a better country we’d be without Jeff Sessions, Wilbur Ross, Betsy DeVos, Ben Carson, Steve Mnuchin, Scott Pruitt and the lot of them! And look what these people are doing to our country, our environment, schools, and our overall morale.

Can We Denuclearize the Senate?

Yes, but that is highly unlikely to happen. Why? Let’s say the Democratic Party re-takes the Senate after the mid-terms. The Senate has the ability to make new rules for the session. Rule making needs only a majority vote. The filibuster could be reinstated, but would you?

In essence you wold be giving the minority party ammunition to torpedo your nominations, your appointments. So, in this highly partisan atmosphere where the rule is not a Golden one, more tit-for-tat, it’s not likely, in my opinion, and the end result is going to be more extreme appointments by both the right and the left.

For now, even though Trump is arguing that it too should be eliminated, the legislative filibuster is still alive. In today’s political climate, I’ll take solace where I can find it, no matter how small.

In case you were wondering . . .

 

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