How a Filibuster Could Shape the Supreme Court Nomination Process

 

Now that the confirmation hearings for Supreme Court nominee Neil Gorsuch have been completed, the Senate Judiciary Committee will vote on April 3.  It is nearly certain that the nomination will be reported to the Senate floor on a party line (11-9) vote.

 

The battle, however, is just beginning. The decisions which Senate leadership on both sides of the aisle make have the potential to permanently damage the Senate, the Supreme Court and the nation.

 

Democratic Leader Chuck Schumer (D-NY) has declared his intention to lead a filibuster of the nomination. Under existing Senate rules, ending debate under those circumstances would require 60 votes. Since there are only 52 Republicans in the Senate, a sustained filibuster by 41 or more of the 48 Democrats could block the Gorsuch confirmation.

 

Schumer, however, appears to be leaving room for the most endangered Democrats, those up for re-election in 2018, particularly in states which President Trump carried in the 2016 election, to support a “cloture vote” to end the debate while ultimately voting against Gorsuch on the final simple majority vote to confirm.

 

This means that it is unclear whether when the Democratic filibuster is launched, it will ultimately prevent Gorsuch’s confirmation. That will depend on whether 41 or more Democrats oppose cloture. (It is even possible that one cloture vote would fail, and then a few Democrats having demonstrated the strength of their opposition to the nominee, would allow a second cloture vote to succeed opening the road to final approval.)

 

The Republican leader, Mitch McConnell (R-KY), has turned up the heat on the whole confrontation by announcing his intention to hold the vote on Gorsuch prior to the start of the April 7 recess.

 

Complicating the matter, McConnell seems likely, if forced all the way to the wall, to use a parliamentary gimmick which has been given the label, “nuclear option.” Use of this ploy would permit the majority to create a new precedent allowing the majority party alone to end the debate and confirm Supreme Court nominees.

 

He signaled his willingness to do so, asking, “If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?”

 

Also Schumer, I am sure, recognizes that sustain a filibuster for an extended period, McConnell will be forced to twist the rules.

 

Democrats in November, 2013, used this procedure to allow simple majorities to end debate on all other presidential nominations excepting the Supreme Court. I have frequently pointed out that this placed the Senate on a “slippery slope.”

 

Adding to the drama is the fact that McConnell is an institutionalist who recognizes how dangerous for the Senate and the Court use of the nuclear option would be. I believe that he would very much like to avoid its use, but the pressure from the Republican base (and President Trump) could be unrelenting.

 

Not only the future of the Senate is at stake, but the nuclear option damages the Supreme Court itself. No longer would presidents, whose party was in the majority in the Senate, need to take the opposing party into consideration at all. Factoring in the need to reach 60 votes has historically been a moderating force in the selection of nominees.

 

Republicans acting for short-term gain would also be short-sighted. Change in which party is in the majority in the Senate almost always looms on the horizon as it does now. A new majority would be highly likely to retaliate.

 

The Senate would be saddled with a polarizing precedent, virtually impossible to reverse. And, the Supreme Court would become permanently politicized and polarized. This risks undermining both the credibility and authority of the Supreme Court.

 

IU Press Author Richard A. Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin (D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the “Book of the Year” award winning Defending the Filibuster: The Soul of the Senate-Revised and Edited Edition. He is a visiting lecturer of political science and international & public affairs at Brown University. Visit his website at www.richardarenberg.com.

 

 

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Richard A. Arenberg

Brown University