U.S. Supreme Court nominee Brett Kavanaugh listens during the first day of his confirmation hearing in front of the U.S. Senate on Capitol Hill in Washington, .D.C, on September 4, 2018. (Brendan Smialowski/AFP/Getty Images. via Newsmax
The Senate Judiciary Committee has begun its confirmation hearings on President Trump’s nomination of Judge Brett Kavanaugh to serve on the Supreme Court.
The hearings begin in the wake of the refusal of the Trump administration to provide documents from Judge Kavanaugh’s service in 2003 to 2006 as White House staff secretary in the George W. Bush administration. Senate Democratic leader Chuck Schumer (D-NY) argues, "President Trump's decision to step in at the last moment and hide 100,000 pages of Judge Kavanaugh's records from the American public is not only unprecedented in the history of Supreme Court nominations, it has all the makings of a cover up.”
The Republican majority is rushing the confirmation process in order to confirm Kavanaugh before the election in November. They are able to do this because they changed Senate precedents to neuter the filibuster rule as it applies to Supreme Court nominations in order to confirm Justice Neil Gorsuch in April 2017. Now, it takes only a simple majority to end debate and confirm a Supreme Court nominee. Obviously, a unified majority (not so hard to accomplish in the age of partisan polarization) can carry this out over the objections of any minority no matter how justified.
In January 2017, as the new president was about to take office, I wrote in The New York Times: “It’s important to keep the filibuster. With it, presidents must try to win the minority’s support for nominees. This has helped to keep nominations in the judicial mainstream. True, because of the hyper-partisanship in the Senate, the filibuster has been abused in recent years. The solution to excessive partisanship, however, is not to rewrite Senate rules. Eliminating the filibuster, in fact, would worsen the polarization.”
I was making the argument as former Senate Parliamentarian Robert Dove and I did in "Defending the Filibuster: The Soul of the Senate" that ripping the potential for a filibuster from the fabric of Senate deliberation on judicial nominations would be a huge mistake. It undermines the protections of the minority. We made this plea in the face of the Democrats’ threat to eliminate the filibuster. In 2013, they acted to eviscerate the minority’s role in the confirmation of nominees to the federal bench with the exception of the Supreme Court.
With the shoe on the other foot, faced with a Republican majority, Democrats fought to no avail against the Republicans’ determination to use the same precedent to end the filibuster against Gorsuch.
Carl Hulse, writing in The New York Times on Sunday, put it well, pointing out the damage done by the Democrats in 2013 and the Republicans in 2017, “…has major implications for the integrity not only of the Senate, but also the federal court which are increasingly seen by the public as just another venue for political wrangling.”
On "Meet the Press," on Sunday, Senator Amy Klobuchar (D-MN), acknowledged her view that Democrats made a mistake in 2013 and that she would support bringing back the filibuster. She said, “I don't think we should've made that change, when we look back at it, but it happened because we were so frustrated, because President Obama wasn't able to get his nominees.”
To highlight just how toothless the Senate Democrats have been left, it’s instructive to recall the efforts of Senator Ted Kennedy (D-MA) in 1986 to overcome the refusal by President Reagan’s administration to produce documents which Kennedy argued bore directly on the fitness of William Rehnquist to serve as Chief Justice of the United States.
Kennedy wrote about Watergate Committee demands for documents withheld by the Nixon administration a decade earlier, “[Watergate Committee chairman] Senator Sam J. Ervin was right when he [argued]… that no President may fairly demand confirmation of his nominee while refusing to divulge the information that senators reasonably may deem necessary to perform their constitutional role in the confirmation process…”
Kennedy declared, “No documents, no confirmation.”
The Reagan Administration caved. They produced the documents. Of course, in 1986, Kennedy’s demands were effective because they were backed by the potential of a filibuster.
No senator today has this powerful tool any longer, because of the misguided changes to the filibuster carried out in 2013 and 2017. No senator today can, with confidence, echo Kennedy’s declaration, “No documents, no confirmation.”
Senator Klobuchar is not alone. Many senators, on both sides of the aisle, privately support fully restoring the filibuster rule. Senator Blumenthal (D-CT) has said, I would vote for that. There was a reason for the filibuster, and it is rooted in fairness to the minority, and right now there is no fairness to the minority.”
Senator John McCain (R-AZ) in the days leading up to the Republicans’ elimination of the filibuster for Supreme Court nominees, was asked about those in his own party who argued that dumping the filibuster was a good thing. In classic McCain fashion, he struck that argument down, declaring, “Whoever says that is a stupid idiot, who has not been here and seen what I’ve been through and how we were able to avoid that on several occasions. …And they are stupid, and they’ve deceived their voters because they are so stupid.”
McCain in his final speech to the Senate in July reminded his colleagues that, “…our arcane rules and customs are deliberately intended to require broad cooperation to function well at all… Our strange rules and seemingly eccentric practices that slow our proceedings and insist on our cooperation are important. Our founders envisioned the Senate as the more deliberative, careful body that operates at a greater distance than the other body from the public passions of the hour… Our consent is necessary for the president to appoint jurists ... Whether or not we are of the same party, we are not the president’s subordinates. We are his equal! ...Our success in meeting all these awesome constitutional obligations depends on cooperation among ourselves.”
McCain declared, “The success of the Senate is important to the continued success of America. This country – this big, boisterous, brawling, intemperate, restless, striving, daring, beautiful, bountiful, brave, good and magnificent country – needs us to help it thrive. That responsibility is more important than any of our personal interests or political affiliations.
Senators, searching for a fitting way to honor Senator John McCain could do no better than to act that way. They can begin, in the Kavanaugh confirmation process, by taking the time and providing the documents necessary to respect the role of the minority and subsequently by joining in a bipartisan fashion to restore the filibuster rule on judicial nominations.
Richard A. Arenberg is a Visiting Professor of the Practice of Political Science and a Senior Fellow at the Watson Institute for International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg is the author of the forthcoming "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress." He was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.