Last Thursday, Senate Majority Leader Mitch McConnell and the Senate Republicans employed the “nuclear option,” changing Senate rules to make it impossible to filibuster Supreme Court nominees. The move cleared the way for Neil Gorsuch to be confirmed to the highest court on Friday and to be sworn in this week. It’s a decision that Republican senators will likely regret. So will we.
In ordinary circumstances, the Senate has no time limit on debate. This rule allows for thorough consideration of the issues at hand, but it also makes filibusters possible. An individual senator or a small group of them can stop Senate business by, essentially, talking it to death.
There are two ways to end a filibuster. Either the Senate leaders withdraw the proposal under discussion, which is the point of filibustering in the first place, or they convince three-fifths of the Senate, 60 members, to end debate and move to a vote.
As of last Thursday morning, Republicans had the simple majority needed to confirm Gorsuch but not the 60 votes to override a threatened Democratic filibuster to block him.
In this tricky situation, McConnell decided to escalate the hostilities. He initiated a change in the Senate rules so that only a simple majority would be needed to call the vote on Supreme Court nominees. This is the “nuclear option” that effectively ends judicial filibusters in the Senate.
The real significance of McConnell’s move has nothing to do with Gorsuch but with future nominees. When the filibuster rule was in place, presidents knew that their Supreme Court nominees must win at least some support from the opposite side as insurance against a filibuster. This knowledge forced them to nominate middle-of-the-road judges who could gain basic acceptance from both parties.
After yesterday’s maneuver, future nominees will need only the support of a simple majority. So, consider the situation with Republicans today or Democrats a few years ago, when the president and the Senate majority are of the same party. Without the possibility of a filibuster, presidents won’t worry about votes from the other party. They’ll be concerned instead with winning over the extreme members of their own party.
Without the filibuster, presidents will be pushed to nominate judges who appeal to the political extremes rather than the middle of the electorate. This is a big problem.
The U.S. Constitution has a carefully balanced separation of powers. In principle, Congress makes the law, and the courts interpret the law by applying it to cases. To use a familiar analogy, Congress writes the rules of the baseball, and the courts call balls and strikes.
When a baseball league hires umpires, they look for people who will be impartial referees, not people who root for one team or the other or who have strong opinions about what the rules should be. The courts need this kind of evenhandedness in their judges as well. The long-term effect of appointing highly political judges will be to deepen the partisanship in our national politics and to erode the public’s trust in the impartiality of the courts.
It was short-sighted to change the rules in this way. Democrats, when they were in the majority, already took the step of eliminating the filibuster for lower-court nominations, and the results have been largely negative. Judgeships remained unfilled, the courts are more politicized, and partisanship in the Senate is worse than before.
Gorsuch had nearly enough votes to override a filibuster. Republicans and Democrats could have compromised to get him through. Republicans might have given Democrats something they want, and Democrats in exchange could have provided a few more votes. That’s what leaders do in a democracy.