Law & the Courts

Karma, Precedent, and the Nuclear Option

Harry Reid and Chuck Schumer on Capitol Hill in 2014. (Reuters photo: Jonathan Ernst)
The Democrats reap what they sowed with Harry Reid’s court-packing.

For euphemism, dissimulation, and outright hypocrisy, there is nothing quite as entertaining as the periodic Senate dust-ups over Supreme Court appointments and the filibuster. The arguments for and against the filibuster are so well known to both parties as to be practically memorized. Both nonetheless argue their case with great shows of passion and conviction. Then shamelessly switch sides — and scripts — depending on the ideology of the nominee.

Everyone appeals to high principle, when everyone knows these fights are about raw power. When Democrat Harry Reid had the majority in the Senate and Barack Obama in the White House, he abolished the filibuster in 2013 for sub–Supreme Court judicial appointments in order to pack three liberal judges onto the D.C. Circuit Court of Appeals.

Bad karma, bad precedent, he was warned. Republicans would one day be in charge. That day is here and Republicans have just stopped a Democratic filibuster of Neil Gorsuch by extending the Reid Rule to the Supreme Court.

To be sure, there are reasoned arguments to be offered on both sides of the filibuster question. It is true that the need for a supermajority does encourage compromise and coalition building. But given the contemporary state of hyperpolarization — the liberal Republicans and conservative Democrats of 40 years ago are long gone — the supermajority requirement today merely guarantees inaction, which, in turn, amplifies the current popular disgust with politics in general and Congress in particular. In my view, that makes paring back the vastly overused filibuster, on balance, a good thing.

Moreover, killing the filibuster for Supreme Court nominations (the so-called nuclear option) yields two gratifications: It allows a superb young conservative jurist to ascend to the seat once held by Antonin Scalia. And it constitutes condign punishment for the reckless arrogance of Reid and his erstwhile Democratic majority.

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A major reason these fights over Supreme Court nominations have become so bitter and unseemly is the stakes — the political stakes. The Supreme Court has become more than ever a superlegislature. From abortion to gay marriage, it has appropriated to itself the final word. It rules — and the normal democratic impulses, expressed through the elected branches, are henceforth stifled.

Why have we had almost half a century of massive street demonstrations over abortion? Because the ballot box is not available. The court has spoken, and the question is supposedly settled for all time.

This transfer of legislative authority has suited American liberalism rather well. When you command the allegiance of 20 to 25 percent of the population (as measured by Gallup), you know that whatever control you will have of the elected branches will be fleeting (2009–10, for example). So how do you turn the political order in your direction? Capture the courts.

They are what banks were to Willie Sutton. They are where you go for the right political outcomes. Note how practically every argument at the Gorsuch hearings was about political outcomes. Where would he come out on abortion? Gay marriage? The Democrats pretended this was about principle, e.g., the sanctity of precedent. But everyone knows which precedents they selectively cherish: Roe v. Wade and, more recently, Obergefell v. Hodges.

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Liberalism does not want to admit that the Court has become its last reliable instrument for achieving its political objectives. So liberals have created a great philosophical superstructure to justify their freewheeling, freestyle constitutional interpretation. They present themselves as defenders of a “living Constitution,” under which the role of the Court is to reflect the evolving norms of society. With its finger on the pulse of the people, the Court turns contemporary culture into constitutional law.

But this is nonsense. In a democracy, what better embodiment of evolving norms can there be than elected representatives? By what logic are the norms of a vast and variegated people better reflected in nine appointed lawyers produced by exactly three law schools?

If anything, the purpose of a constitutional court such as ours is to enforce old norms that have preserved both our vitality and our liberty for 230 years. How? By providing a rugged, reliable frame within which the political churnings of each generation take place.

The Gorsuch nomination is a bitter setback to the liberal project of using the courts to ratchet leftward the law and society. However, Gorsuch’s appointment simply preserves the Court’s ideological balance of power. Wait for the next nomination. Having gratuitously forfeited the filibuster, Democrats will be facing the loss of the Court for a generation.

Condign punishment indeed.

— Charles Krauthammer’s e-mail address is letters@charleskrauthammer.com. Copyright © 2017 The Washington Post Writers Group

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