Will a Gorsuch Filibuster Change the Judiciary?

Democrats in the Senate are debating whether or not to attempt to block the nomination of Neil Gorsuch to the Supreme Court. Such a move would force Mitch McConnell to change Senate rules to make Gorsuch a Justice by making Supreme Court nominations subject to a simple majority vote. While it is possible the remaining undecided Democrats will vote to approve Trump’s nominee, he’ll essentially need to run the table of those senators, which seems unlikely. So, the filibuster is likely to die. What could this mean for future Supreme Court nominees?

The first point that has to be considered is whether the filibuster could have survived in any scenario. Had Hillary Clinton won the presidency, and Republicans held onto the Senate, some Republicans suggested that the seat could just be left open indefinitely (if you think that sounds like something Ted Cruz would say, that’s because it was Ted Cruz). Perhaps the filibuster simply doesn’t work in our hyper-partisan environment, and would have led to more and more court vacancies. While that’s obviously not the outcome we want to see in our courts, we do have to consider if want our divided politics to spread to our judges and justices.

If the filibuster is used on Gorsuch and eliminated, both parties will be able to explicitly campaign on their ability to appoint and block future Supreme Court nominees. In 2018, Democrats will try to persuade their base to turn out to regain the Senate majority in the hopes that they can block any further Trump appointments. When a Democrat returns to the presidency, the GOP will do the same. The country will rapidly approach a new reality of politics: that the only time a new Supreme Court justice can be appointed is when the White House and Senate are controlled by the same party. As the Court becomes more of a political entity, the public’s view of the institution will continue to degrade, as will the legitimacy of its rulings. Even the most non-ideological appointees cannot help but be politicized by such a toxic process.

Part of the reason the Court will be perceived as more political if the filibuster is eliminated is because, well, it will be more political. Both parties are finding it increasingly advantageous to appeal to the base and to pay less attention to moderates. If this really is the formula for success in national politics today, and the rules of the Senate permit it, what is the advantage in choosing a moderate Supreme Court nominee? While progressives are rightly furious about the way Merrick Garland was treated, many actually saw his nomination as a disappointment when it was announced. Meanwhile, President Trump floated the idea of appointing Ted Cruz to fill Justice Scalia’s seat, and may have felt more compelled to choose him had he known that the filibuster would be gone. Perhaps if he has the opportunity to fill another seat, Trump will recognize the popularity such a move would have with the Republican base and see little advantage in pleasing moderates or conservative Democrats with a Garland-esque pick.

Anyone who is worried about the politicization of the judiciary should be worried about the likely destruction of the filibuster on Supreme Court nominees this week. Ultimately, blowing up the old rules for a judge who is, in the end, a mainstream conservative may not prove to be a wise move for the country. Perhaps a later, more extreme pick from President Trump will drive away GOP senators like Lindsey Graham or John McCain, and the filibuster can be preserved. Or, perhaps Senate Republicans will vote for any conservative Trump nominates out of desperation to shift the balance of the Court. Senate Democrats should weigh these possibilities carefully before they change the deliberative nature of one of the few institutions in the United States where deliberation can continue to exist.

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3 Responses to Will a Gorsuch Filibuster Change the Judiciary?

  1. bealpeyton says:

    There are many points of interest that are raised by Mitch McConnell’s decision to “nuke” the filibuster and only require a 51 vote simple majority to confirm Supreme Court nominees. The most salient point being, without question, is the fact that there is virtually no longer any need for partisan approval of Supreme Court nominations. Abandoning longstanding tradition, the Senate is becoming less of a different, independent branch of government and more similar to the House with each and every time the minority party is weakened.
    Perhaps it does not appear to be as large of a leap because of the hyper-polarized atmosphere that spawned it, but the elimination of the filibuster is, ostensibly, the final nail in the coffin for what was a precedent of bipartisan support for moderate, qualified nominees. Although now, on the positive side, our public officials can cut the nonsense and the voters will know what they are getting: if you vote in a senate and president of the same party, you will see nominees to the Supreme Court who will ascend to the bench with little to no legitimate scrutiny. If you vote in a president and senate that each belong to a different party, you are unlikely to see any nominee even receive a hearing, regardless of their judicial record.

  2. bpclass17 says:

    You did a great job of explaining how letting go of the filibuster affects the conversation around increasing politicization of the Supreme Court. Important Supreme Court cases are called “landmark” cases. Much like the Statue of Liberty or Mount Rushmore, these decisions on individual cases can transform law and the political order across the United States quickly. We explored this in great detail earlier in this class.

    I have heard conflicting data and analysis about whether or not voters in the 2016 presidential and Congressional elections cared about the Supreme Court. Pollsters can slice that topic many ways. For example, did voters care about Merrick Gardland, who was President Obama’s nominee denied confirmation? Did evangelical voters turn out for Donald Trump despite misgivings about his character (see Access Hollywood tape) because of that vacancy?

    There is a lot of conflicting poll data on this, in part because the results depend on the question. The surprise victory of Donald Trump on Election Night shows that polls can be flawed or uncertainty can be misinterpreted. We have yet to see a comprehensive post-mortem analysis of the Supreme Court as an issue for voters in the 2016 election.

  3. amsturdam says:

    When looking into the drama that has been associated with filing Justice Scalia’s seat it seemed like this was the only way it could have happened. So much has occurred ranging from Merrick Garland’s nomination essentially being laughed at by the Republican controlled Senate to Trump surprisingly winning the election. It seems like the Democratic party in a sense has had the rug ripped out from underneath them.

    Looking further into it I feel like the “nuclear” option the Republican party was forced to use was truly their only option. The Democratic party believed Obama should have had the ability to nominate a justice and many including myself would agree with that. Because of this I think the idea of filibustering the nominee is completely fair game.

    I really like the idea of us not being able to have a bi-partisan decision because the two parties are so polarized. I have believed for a long time that this has been an issue within our government for a long time and this is just another example of it.

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