Supreme Court showdown a long time coming for Senate
Democrats were instigators, then GOP became annihilators
WASHINGTON History was made Thursday in the United States Senate: Democrats mounted a partisan filibuster of Supreme Court nominee Neil Gorsuch. Republicans blew up the Senate’s rules to clear the way for his confirmation.
But that history came with a history of its own, replete with temporary victories for each party and plenty of blame to go around. It’s a brawl that’s been decades in the making. And it’s put the court where it least wants to be — squarely in the middle of American politics.
Before Gorsuch, there was Merrick Garland. Before Garland, there was Miguel Estrada. Before Estrada, John Roberts and Elena Kagan. Before Kagan, Robert Bork. Before Bork, Clement Haynsworth. Before Haynsworth, Abe Fortas.
All were blocked, at least initially, from the courts to which they aspired. Some, like Bork and Haynsworth, were Supreme Court nominees defeated on the Senate floor. Others, like Roberts and Kagan, eventually made their way to the high court after partisan fights over their appeals court nominations.
Republicans say Democrats started it. “They seem to be hurtling toward the abyss this time and trying to take the Senate with them,” Senate Majority Leader Mitch McConnell said during this week’s debate. “The future of the Senate will hang on their choice.”
Democrats say Republicans precipitated this week’s final act with their treatment of Garland last year.
“He leaves out an important chapter, the last chapter, the one that brought us to this moment in the United States Senate,” Sen. Dick Durbin, D-Ill., responded.
POLITICS ENSNARE COURTS
The judicial juggernaut that ensnared two of the nation’s most esteemed federal judges over the past 14 months — men considered by senators from both parties to be supremely qualified for the Supreme Court — has a rich history: 1999: President Bill Clinton was blocked by Republicans from filling 16 federal appeals court vacancies during his presidency, including the seat on the D.C. Circuit intended for Elena Kagan — who eventually won confirmation to the Supreme Court in 2010.
2001: President George W. Bush sought to fill a number of federal court vacancies soon after his election — one of which, on the D.C. Circuit, would have gone to John Roberts — but was blocked by Democrats. Roberts made it to the appeals court in 2003 under a Republican-controlled Senate en route to his current job as chief justice.
2003: Bush’s battles with Democrats over judicial nominations reached a head two years later, when they filibustered four appeals court nominees — most notably Miguel Estrada, who eventually withdrew his name. A bipartisan settlement allowed some nominees to get through, including William Pryor, now a federal appeals court judge who was on President Trump’s list of potential Supreme Court nominees.
2006: Bush’s choice of Samuel Alito for the Supreme Court seat vacated by the moderate Justice Sandra Day O’Connor met a filibuster by Democrats, but they managed only 25 of the 41 votes needed to succeed. Alito was confirmed by a 58-42 vote.
2013: President Barack Obama met a wall of resistance from Senate Republicans for many of his lower court nominees, a battle that culminated at the start of his second term over three vacant seats on the D.C. Circuit. To get Patricia Millett, Cornelia Pillard and Robert Wilkins confirmed, Senate Democrats invoked the first iteration of the “nuclear option” by changing Senate rules for executive branch and lower court nominees.
2016: Obama’s choice of Merrick Garland to succeed Justice Antonin Scalia was intended as an olive branch to Republicans, since Garland was older (63) and more moderate than other potential nominees. But McConnell had vowed the night Scalia died to hold the seat open for the next president, and Garland never got a hearing.
DEMS START, GOP ESCALATES
So who started it? Who’s been more effective at it? And who’s most to blame?
Martin Gold, former counsel to two Senate Republican majority leaders and an expert on Senate procedure, says the fight over judges has been “careening” toward this week’s culmination since Bork was defeated 30 years ago. He notes Democrats were the first to defeat judicial nominees by filibuster in 2003.
Congressional scholar Norman Ornstein of the American Enterprise Institute agrees both parties have played roles in escalating the battle, “but the balance is worse on the Republican side.”
Sarah Binder of the Brookings Institution, a political science professor at George Washington University and author of a book on the federal judiciary, is more diplomatic in assessing blame. She sees only a “parliamentary arms race where one party does something, the other party tries to push back.”
And Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst who’s written on judicial nominations, blames Democrats as the instigators and Republicans as the annihilators.
During the Reagan years and again under George W. Bush, Democrats blocked lower court judges who they considered too conservative. The epitome was Estrada, who current Senate Democratic leader Charles Schumer compared to “a Stealth missile — with a nose cone — coming out of the right wing’s deepest silo.”
Republicans, Goldman says, responded even more forcefully by bottling up Obama’s nominees to lower courts even when ideology wasn’t a problem. That led Democratic leader Harry Reid to do for lower courts in 2013 what McConnell plans to do Thursday for the Supreme Court — strip the minority party of its ability to filibuster.
“The Republicans are master fighters at this,” Goldman says. “They do payback like we’ve never seen before.”
“They seem to be hurtling toward the abyss this time and trying to take the Senate with them.” Senate Majority Leader Mitch McConnell, referring to Democrats