by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Let’s get this over with: The confirmation of a Supreme Court justice. And let’s also get over the filibuster rule, which is blocking the confirmation of Neil Gorsuch to the highest court in the land. Nothing has changed about Gorsuch since 2006, when the Senate confirmed him unanimously by voice vote to be a judge on the Tenth Circuit Court of Appeals.
Except one thing: Last year, Republicans refused to consider Merrick Garland for the same Supreme Court seat. He got no up-or-down floor vote, and most Republicans wouldn’t even chat with him, for the purely political reason that there was a presidential election coming.
It was a bad idea in principle, since it made all too clear that the Supreme Court was becoming another legislative house rather than a temple of judicial neutrality.
Ignoring Garland was practical in the short term, because the nation did elect a Republican, and President Donald Trump gets to fill the seat left vacant by the death of Justice Antonin Scalia. However, it also angered Democrats and showed Senate Republicans to be political cowards, unwilling to make a controversial vote in public. …
… Contentious nominations to the Supreme Court did not start with the 1986 persecution of Robert Bork. From the first appointments in 1789 to the most recent (Elena Kagan in 2010), the Senate has received 160 formal nominations and confirmed only 124. Only 11 were rejected in roll-call votes; the other names were withdrawn by the president or never voted on by the Senate. One—Abe Fortas for chief justice in 1968—was filibustered and could not win the cloture vote that would have stopped debate. (With 45 votes, he could not have won a confirmation vote, either.)
On the nomination of Gorsuch, the Senate must also consider breaking through the filibuster. Gorsuch is very likely to win the constitutionally necessary 51 votes, but Republicans almost certainly cannot get 60 votes to shut off debate.
Everyone who cares must know by now that the U.S. Senate’s rule on debate is a fossil. It’s only a matter of time until the angry partisans that now inhabit the Senate throw it out. It could come as soon as next week.
There is no constitutional issue here; it’s strictly a matter of Senate rules and procedures. Supermajorities are required only to propose constitutional amendments, to override presidential vetoes, and to approve treaties.