Law & the Courts

The Only Way to Get Back to Nine

Senate Minority Leader Chuck Schumer (Reuters photo: Yuri Gripas)
The nuclear option was the only way to confirm a justice in an age of hyper-partisanship.

The vote was held and the sky didn’t fall. Though liberals solemnly proclaimed that tradition and even the fabric of democracy were in peril, when the Senate moved to change the rules to allow a simple majority to get a vote on a Supreme Court nomination, the result was hardly revolutionary. Filibusters on nominations are a relatively recent innovation and were almost unknown until Democrats sought to stop George W. Bush’s picks. But the most important point about what has just happened is that it was absolutely necessary. We can debate which side is more at fault in getting us to the point where Court confirmations have become a steel-cage partisan wrestling match, but going nuclear was going to have to happen if we were ever to get back to nine justices, no matter who had won the 2016 presidential election or which party controlled the Senate.

Like the Republicans who spouted endless sermons about the virtues of a so-called tradition after then–majority leader Harry Reid ended the filibuster for lower-court nominations, Democrats are declaring today’s vote to be the effective end of the U.S. Senate, if not American democracy.

This is absurdity on wheels and it ill becomes the party that turned Judge Robert Bork’s name into a verb and first weaponized the filibuster as a routine way of preventing a president from filling appeals-court vacancies, only in the last 15 years. Yet they’re right to point out that the current atmosphere in which there is no common ground between the parties is very different from the way the Senate used to operate. The problem is not so much their pretense of virtue but the refusal to recognize that the only way out of the current impasse is to recognize that Congress, without the filibuster-rules change, will really cease to function effectively.

It is in the nature of partisan politics that Democrats have to represent their attempt to demonize a mainstream and highly respected jurist like Neil Gorsuch as an expression of principle. So, too, is their continued effort to relitigate the refusal of Senate Republicans to even consider President Obama’s nomination of Judge Merrick Garland last year. The stonewalling of Garland looked unreasonable, but, in retrospect, it was actually merciful. Had Garland been granted a hearing, he would have been subjected by Republicans to the same kind of unreasonable vilification and distortions of his record that Gorsuch just got from the Democrats. The only difference is that Gorsuch suffered the ordeal secure in the knowledge that — thanks to the invocation of the nuclear option by Majority Leader Mitch McConnell — he would eventually be confirmed. Garland would have been put through the same torture knowing there was no chance he would ever sit on the Supreme Court.

That is a function of our polarized politics. It is utterly disingenuous to claim, as Democrats are now doing, that filibusters are a force for bipartisanship because they require the parties to seek consensus. The inescapable fact about American politics in the 21st century is that such consensus is no longer possible. The unwillingness of Republicans to consider a mainstream liberal such as Garland or for Democrats to make their peace with a mainstream conservative such as Gorsuch is a commentary on our bifurcated society. Americans no longer watch, listen to, or read the same media as their counterparts on the other side of the political aisle, and scorched-earth political warfare is the inevitable result. Filibusters can’t fix that, because there is no common ground left between two party bases that think the worst of each other. All the requirement for a 60-vote Senate supermajority achieves is to thwart whichever side happens to be in charge on every possible issue.

When it comes to the legislative agenda — for which neither party has threatened to end the filibuster — that’s not altogether a bad thing even if it is frustrating. The Founders of our republic intended to make change difficult, and even if the filibuster wasn’t part of their plan for the Senate, it does fit in with the idea that it would act as a check on the House of Representatives, which is more likely to be swayed by the passions of the moment. But in our current political environment, the requirement of a supermajority simply means neither side can ever get a justice confirmed no matter how highly qualified he or she might be.

It is a given that, had Hillary Clinton won in November, Republicans would have filibustered any nominee of hers whether or not they retained their Senate majority. Given the fact that their liberal base doesn’t accept the legitimacy of the election results or President Trump, Democrats were never going to give anyone he named to the Court a chance either. The nuclear option was the only, and painfully obvious, remedy.

Nor does it necessarily follow that majority rule is the thin edge of the wedge to tyranny on court nominations than on any other issue where we normally apply that rule. The arguments for or against retaining the filibuster have always been cynical. In the early 1990s, the New York Times editorial page called for its abolition. A decade later, when it was useful to liberals fighting George W. Bush, they demanded its retention. Only a few years later, when Democrats won back the Senate in 2006, they flip-flopped again and denounced GOP obstructionism against the enlightened policies and nominees of Barack Obama. Now they again regard it as the last ditch of democracy since it was a way to thwart Trump. Where you stand on the issue of a filibuster has always depended on where you sit.

So it’s way past time for serious people to drop the hypocritical arguments, understand that contemporary politics isn’t a gentleman’s game, and adjust accordingly. Once they return to power at some point in the future, Democrats can and will use the fallout from this extension of the nuclear option to confirm judges they like. Conservatives won’t like it, but, as President Obama was fond of saying after his victories in 2008 and 2012, “elections have consequences.” Rather than the death knell of democracy, recognition of that principle is the only way to allow it to go on functioning at a point in history when the two parties have so little in common.

– Jonathan S. Tobin is the opinion editor of JNS.org and a contributing writer for National Review Online. Follow him on Twitter at: @jonathans_tobin.

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