Supreme Court appointments reverberate across the decades. Because the court has only nine members and each has lifetime tenure, a new justice may provide the vote to set legal precedents that will stand indefinitely and profoundly change American life.
Judge Neil Gorsuch, who is likely to be confirmed to the court by the end of the week, probably will have that kind of long-term impact even before he takes the bench. To get him on the court, his Republican backers are preparing to toss aside longstanding precedents and deepen the partisan divide that already has nearly paralyzed the Senate.
The Gorsuch drama began this morning with debate in the Senate Judiciary Committee over whether to send his nomination to the floor. A strict party-line split is expected, so look for an 11-9 vote in Gorsuch’s favor.
Floor debate is set to start on Tuesday. Senate Democrats have promised to filibuster the nomination; they’re prepared to keep the debate going indefinitely rather than permit a final vote. All 52 Senate Republicans already are in Gorsuch’s corner; he needs eight votes from Democrats and independents to get the 60 needed under Senate rules to end the filibuster and move to a final vote.
That’s where the Gorsuch fight is set to make history. So far, only four Democrats have said they’ll cross the partisan aisle to support breaking the filibuster and allowing an up-or-down vote on the nomination. More importantly, as of early this afternoon, 41 Democrats are on record in support of a filibuster, enough to block Republican efforts to end it.
That's under the current Senate rules. If Gorsuch indeed comes up short of 60 votes on what the Senate calls “cloture,” a motion to end debate, GOP leader Mitch McConnell has signaled that he’s prepared to exercise the “nuclear option,” and change Senate rules to remove the 60-vote requirement to shut down debate. McConnell needs only a simple majority to change the rule.
Speaking to reporters this morning as the Judiciary Committee prepared to convene, Sen. Lindsey Graham, R-SC, argued that if the rules are changed every federal judgeship, particularly seats on the Supreme Court and the 13 federal courts of appeals will become the focus of a partisan struggle and the judiciary will inevitably become more politicized.
Graham and other Republicans blame Democrats for forcing the issue. But Democrats note that McConnell and the GOP refused last year to grant even a hearing – much less a vote – to then-President Obama’s Supreme Court nominee, federal Judge Merrick Garland.
Like Gorsuch, Garland was highly qualified for the court based on the usual measuring sticks for nominees. But Republicans declared that no vacancy should be filled during an election year so that the voters could have a say in shaping the court through their votes for president. Because they held a majority of Senate seats, they were able to block action on Garland and keep the seat open for President Trump to nominate Gorsuch.
Through much of President Obama’s tenure, Republicans made frequent use of the 60-vote requirement to delay or block action on Obama nominees to the federal courts and administration offices. Democrats, then in the majority in the Senate, retaliated late in 2013 by changing Senate rules to eliminate the 60-vote requirement for ending debate on nominations for federal office and judgeship vacancies other than those on the Supreme Court.
While several members of the current court attracted significant opposition during the confirmation process, only one Supreme Court nominee has ever been filibustered. In 1968, Associate Justice Abe Fortas was denied a promotion to chief justice thanks to a filibuster by senators concerned about ethics problems that ultimately forced Fortas to resign from the court altogether.
Office: Common Cause National
Issues: More Democracy Reforms
Tags: The Filibuster