THE SENATE'S FILIBUSTER FOLLIES
Despite the hue and cry, the ‘nuclear option’ is nothing to fear
In pondering Judge Neil Gorsuch’s nomination to the Supreme Court last week, before voting 54-45 to confirm his seat, senators on both sides of the aisle acted plausibly. But some of what each side said was utter nonsense. Contrary to the hue and cry on the left, the Gorsuch seat was not “stolen” from Democrats and Merrick Garland.
Most frustrating to me, as a constitutional law professor who just a few years ago advised Democrats to kill the filibuster for lower court nominations, the bipartisan weeping over the death of the filibuster — mostly by Democrats, but even by some Republicans — was ridiculously theatrical.
The filibuster, which effectively requires Supreme Court nominees to get 60 votes, is not central to the Senate’s design; it is accidental. The Senate is not forever changed beyond the Founders’ recognition after what happened this week; in fact, its function may be improved.
Let’s start at the beginning. The Constitution intentionally provides for an openly political process of Supreme Court replenishment. Voters pick Presidents and senators; in turn, Presidents pick and senators consent to justices.
When one party wins both the presidency and the Senate on Election Day, as happened last November, that party has effectively earned the right to fill a Court vacancy with a competent and upright jurist.
Senate hearings in such a situation are likely to be a sideshow — TV time for senators and not much more. The main event on the Court’s future occurred long ago — in November, not March.
Gorsuch is not merely regarded as competent and upright by judges, scholars and lawyers across the spectrum; he was also on a short list of potential justices circulated by Donald Trump before the election. The voters thus knew exactly what to expect from a President Trump — someone from the list.
By sticking to this list, Trump kept faith with the electorate. He also picked someone who is not merely some personal pal or crony. Good for him; good for Gorsuch; good for us all.
Why, then, did most Senate Democrats vote no? Because they had made no Election Day promise to confirm the names on Trump’s list. Democrats have a different vision of the country than does Trump, and this vision is held in good faith. Democrats squarely ran against Trump and his list, and they, too, are allowed to keep faith with their electorate.
But how far should a sensible Democrat have gone in resisting Gorsuch? If not Gorsuch, then who? Were Democrats prepared to say no to anyone on Trump’s list, even though the list came directly before the electorate, and even though a blanket no would keep the Court short-staffed for years?
If some names on the list were acceptable, which ones, and what makes the Democrats think that Trump would be likely to name someone better, rather than someone worse, were Gorsuch to be nixed?
In defending their stance on Gorsuch, many Democrats said silly things. Several said that Gorsuch was “out of the mainstream.” But elections largely define the mainstream, and Gorsuch was far from the most extreme name on Trump’s list.
Gorsuch would have been on the short list of virtually any Republican President in 2017 — say, a President Marco Rubio
or a President Jeb Bush, had the Republicans chosen a different nominee.
Nothing that Gorsuch said in the hearings was particularly outrageous. True, he was often evasive, playing keep away and dodging many fair questions. But other Court nominees in recent past have done the same. Since Gorsuch came into the hearings with the unified party support, it was unrealistic to expect him to say much.
Senate Democrats have also repeatedly said that the vacant Court seat at issue was “stolen” from Merrick Garland. Nonsense. Yes, President Obama had a right to nominate D.C. Circuit Judge Garland — a distinguished and widely respected jurist who would have made an excellent Supreme Court justice. But there was no requirement that the Senate say yes to Judge Garland or any other nominee. Republicans won a Senate majority in 2014, and with that majority came the right to say no. The Constitution does not guarantee every presidential nominee a hearing. Over the course of history, thousands of nominees for a wide variety of positions have never gotten hearings; and the modern Senate has often ground to a halt when facing an opposition President in an election year. Even had Garland gotten a hearing, there is no guarantee that he would have received a yes vote in the Republicancontrolled Senate Judiciary Committee; and even had the committee voted yes, the Senate as a whole — also controlled by Republicans in 2016 — could have said no. It was ungenerous to not allow a hearing. The American people were denied the chance to see and hear Garland for themselves and to judge the judge firsthand. But nothing prevented Senate Democrats for staging an eye-catching informal hearing of their own somewhere in D.C., inviting Garland to attend and welcoming or daring all truly fairminded Republicans to participate. Surely C-SPAN and other networks would have covered this extravaganza.
The Democrats chose not to engage in this form of political theater because they expected to win in November and to confirm Garland shortly thereafter. So rather than saying that Garland’s seat was stolen, Democrats must admit that they lost it — twice. First, when they lost the Senate in 2014. Second, when they lost the presidency and the Senate in 2016.
In fact, Garland could have been confirmed in early 2017 had the Dems simply regained the Senate, regardless of the presidential election. The new Senate began sitting in early January, three weeks before the presidential inauguration.
Had the Democrats controlled the chamber, they could and would have confirmed Garland by a series of simple majority votes, following the exact procedure that they previously used to confirm lower-court judges by majority vote in November 2013 — the so-called “nuclear option” that a simple majority of Republicans themselves used this week to confirm Gorsuch.
By refusing to hold hearings on Garland last year, and by turning the 2016 election into a referendum of sorts on the Court, the Republicans took a big risk. Had they lost in November, President Hillary Clinton would in fact have been free to withdraw the Garland nomination and substitute a younger and more ideologically extreme candidate.
In fact, even if Hillary had lost, if the Democrats had won back the Senate, nothing would have stopped Justices Ruth Bader Ginsburg and Stephen Breyer — aging liberals on the court — from stepping down on New Year’s Day and being replaced by two younger liberals who could have been quickly nominated by a lame-duck Obama and confirmed in mid-January.
Such a move would have been hardball on the part of Obama, Ginsburg, Breyer and Senate Democrats. But this is exactly the sort of payback Republicans risked when they chose to spurn Obama’s olive-branch nomination of Garland, a moderate jurist in his early 60s.
The leader of Senate Democrats, Chuck Schumer, has said that “what Republicans did to Merrick Garland was worse than a filibuster.” This is nonsense. The party that controls the Senate is allowed to vote yes or to vote no or to not vote at all. Republicans did not filibuster Garland and did not need to do so: They had the votes to defeat him on the merits.
By contrast, when the Democratic Senate minority tried to block Gorsuch last week, they did need to resort to the filibuster, because they did not have the votes simply to defeat Gorsuch on a straight-up vote.
But it’s in the war of words over what happened next — the death of the filibuster via the “nuclear option,” which allows simple majority vote to approve a Supreme Court nominee — that the arguments thrown around last week were most spurious. The Republicans were within their rights to insist on majority rule through the nuclear option. The invocation of the nuclear option, in fact, was a sensible response to political reality. Yet when it was invoked, people who claim to revere the Constitution were apoplectic. “Benjamin Franklin is turning over in his grave,” proclaimed John McCain. Actually, Franklin strongly supported simple majority rule for the Senate. All the framers of the Constitution did. The Founders did not provide for an entrenched filibuster. No important bill before the Civil War was ever filibustered to death.
It is only in the last quarter century that the filibuster rule — an innovation of distinctly modern vintage — has been used routinely to block a wide range of Senate actions. And this is the period in which the Senate has been uniquely dysfunctional in American history.
So let’s stop pretending that we’ve arrived at some uniquely dark moment in our democracy.
What is now called the nuclear option is more accurately termed the constitutional option — an insistence that the Constitution itself allows simple majority rule for the House of Representatives (218 votes beat 217), for the Supreme Court (five votes beat four) and also for the Senate.
In 2013, as a constitutional scholar advising various senators and staffers, I encouraged Senate Democrats to use this constitutional option to confirm certain lower-court judges.
Everyone involved that day understood that the same rules would apply whenever Republicans controlled the Senate, and that either party on any day could choose to extend the constitutional option to Supreme Court nominations or to ordinary legislation.
McCain, echoing Schumer and others, says that eliminating the filibuster will make the Senate exactly like the House of Representatives. Not so. Senate procedure will always likely be more accommodating towards the minority party.
A smaller body is apt to be chummier. Six-year Senate terms make it easier to be conciliatory to the opposite party without facing immediate punishment from short-memoried extremist voters in a party primary.
And whereas most House seats are either deep red or deep blue, many senators represent moderate swing states in which compromise is not a dirty word in the general election.
With or without the filibuster — which still exists for legislation, just not for confirmation of executive-branch officials or judges — the design of the Senate is just different.
Even if many senators today are fuzzy on several basic principles, the framers knew what they were doing. To sum up: First, it is permissible and even healthy for senators of different parties to take different views on judicial nominees. Second, elections largely define what is “mainstream” at any moment. Third, there is a big difference between having a seat “stolen” and losing it in a fair political process. Finally, majority rule is not some scary thermonuclear threat to life as we know it. Rather it forms the constitutional bedrock of the Senate, which has now taken another important step away from dysfunctional gridlock and toward responsible governance.