by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Thomas Donlan of Barron’s is no fan of petty political games involving either major party. He explains in the latest issue how the latest example could deal a death blow to a nearly 200-year-old tool for slowing federal legislation.
Even before the nominee was named, Democrats were swearing that they would never confirm any name submitted by that man in the White House and supported by the Republican senators who “stole” former President Barack Obama’s nominee by refusing to give him an up-or-down vote.
That was a bad move on the Republicans’ part last year, just as it would have been a bad move if Democrats could have followed through on Joe Biden’s identical idea in 1992.
When it suited them, Biden and Majority Leader Mitch McConnell said a high court vacancy should not be filled until after the American people could express themselves through the upcoming presidential election.
Bipartisan thoughts are not reliably sensible, and this was worse than many. The Constitution places heavy reliance on a federal court system above the factional discord the framers naturally expected in the new government. A national election of a Supreme Court justice is against Republican and Democratic principles. Control of the Senate by 60 votes is a lot harder, as it should be.
Now the Democrats are talking about taking the childish tit-for-tat that plagues both parties to a greater depth with a filibuster of the Gorsuch nomination. If they are that reckless, they could push McConnell to rip up the 60-vote cloture rule as it applies to Supreme Court confirmations. This is known as the “nuclear option,” because it blows a huge hole in Senate rules and traditions.
President Trump says that’s a great idea. “If we end up with the same gridlock we’ve had in Washington…I would say, ‘If you can, Mitch, go for it.’ ”
But there are worse things than gridlock. It’s only another small step from there to the end of supermajority votes for shutting off debate on legislation, a protection against purely majority rule first used in 1837.