The Democrats cannot prevent Neil Gorsuch from taking his place on the Supreme Court, but how they decide to handle their opposition to his nomination will make or break the Senate’s filibuster tradition. If the filibuster, which has endured in the Senate for more than a century, is eliminated, it will be nobody’s fault, but their own.
The filibuster dates back to at least the 1840s. The early tradition of the Senate was to allow unlimited debate on legislation. In 1917, Senate rules were changed to allow for a cloture vote, in which a two-thirds majority of senators could stop a filibuster. The requirement was later lowered further to the current 60 votes.
The history of the filibuster of judicial nominees is more recent. According to the Washington Post, the filibuster of qualified judicial nominees began when Democrats held up George W. Bush’s nomination of Miguel Estrada to the Court of Appeals in 2003. After seven failed cloture votes, Estrada withdrew his name from consideration and a new Democrat tactic was born.
In 2005, a bipartisan group of Senators called the “Gang of Fourteen,” many of whom are no longer in office, compromised to allow a vote on several of President Bush’s nominees and averted a threat by Majority Leader Bill Frist (R-Tenn.) to end the filibuster for nominees. Senator John McCain (R-Ariz.) told CNN that the group agreed that filibusters of nominees would only be used in “extraordinary circumstances” and would “try to do everything in our power to prevent filibusters in the future.”
When Republicans used the tactic under President Obama in 2013, Majority Leader Harry Reid (D-Nev.) changed Senate rules to eliminate the filibuster of most presidential nominees, but left it intact for Supreme Court nominees. “The American people believe the Senate is broken, and I believe the American people are right,” Reid told the Washington Post at the time, “It’s time to get the Senate working again.”
At the same time, Reid also changed Senate rules to require only a simple majority vote to amend Senate rules rather than the traditional two-thirds vote required for major rule changes. Reid’s precedent makes it much easier to Republicans to change the Senate rules today.
Fast forward to 2017 and Democrats are threatening to filibuster another well qualified nominee. The Democrats do not have enough votes to defeat the Gorsuch nomination, but they do have enough votes to block the Senate from voting on him under current filibuster rules.
A Democrat filibuster would be an exercise in futility that would change the Senate forever.
Appearing on Fox News, Majority Leader Mitch McConnell (R-Ky.) said on Sunday, “We're going to confirm Judge Gorsuch this week.” Implicit in the remark is the promise that there will be a vote on the Gorsuch nomination, regardless of whether Democrats attempt a filibuster or not. McConnell will invoke the so-called “nuclear option” and change Senate rules, which require now only a simple majority vote to eliminate the filibuster for Supreme Court nominees.
For years, the policy of the United States has been one of “no first use” of nuclear weapons. Harry Reid’s decision to invoke the nuclear option in 2013 shows why. It becomes easier for other countries to use their own nuclear option when the situation warrants.
By eliminating the filibuster for most nominees, Harry Reid made it likely that the filibuster would be erased for the few exceptions that remained as well. There is little doubt among Republicans that, if the roles were reversed, the Democrats would eliminate the filibuster because they have already done so. McConnell and the Republicans feel that they have nothing to lose.
Some conservatives were even ready to trash the filibuster while Barack Obama was president in order to end the Democrat filibuster of Obamacare repeal legislation. At the time, this would have been pointless since President Obama would have vetoed the bill anyway.
If the filibuster is eliminated for judicial nominees, the next step in the escalation will be to eliminate it entirely. If this happens, the Senate will lose a valuable protection against a tyranny by the majority.
The Democrats can prevent this and save the filibuster simply by being reasonable. They should admit defeat and allow a vote on Judge Gorsuch’s appointment. They can vote “no” to appease their constituents and assuage their consciences.
In the end, a vote will be held and Judge Gorsuch will be confirmed. The only question is whether the filibuster will be a casualty of the confirmation fight.
Originally published on The Resurgent