Bench Memos

Law & the Courts

No Deal on Gorsuch Filibuster

Why would any Senate Republicans ever agree not to abolish the filibuster on the next Supreme Court nomination in order to get Democrats to agree not to filibuster the Gorsuch nomination? The very fact that Senate Democrats have the votes to filibuster Gorsuch shows that they will filibuster any plausible next nominee. So the “deal” that some are floating would simply confer on Chuck Schumer and his fellow Democrats a preemptive veto over the next nomination. What possible sense does that make?

As I’ve explained, claims that the Supreme Court filibuster is part of Senate tradition are utterly wrong. No Supreme Court nominee has ever been defeated by a partisan filibuster. The filibuster of Supreme Court nominees was theoretically possible under Senate rules from 1789 until 1949, but never happened.* And despite the fact that any single senator has since 1949 had the power to require a cloture vote on a Supreme Court nomination, there has been a grand total of four cloture votes on the more than 30 Supreme Court nominations since 1949. In short, on an accurate understanding of the Senate’s dominant traditional practice, abolition of the filibuster for Supreme Court nominees would ensure the continuation of that traditional practice.

Abolition of the Supreme Court filibuster would not threaten the legislative filibuster, which arose and exists for its own reasons. As I’ve discussed, the long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently. Ironically, by wrongly insisting that the legislative filibuster and the nominations filibuster are linked, defenders of the legislative filibuster undermine their own cause.

Concerns that abolishing the filibuster would lead presidents to make extreme Supreme Court picks are also misplaced. That didn’t happen during the long period when the filibuster was regarded as completely off the table, much less during the 160 years when it wasn’t even a formal option. The simple fact is that ordinary politics — e.g., the interest in securing a solid Senate majority, the desire for public acclaim — amply constrains a president’s discretion in selecting Supreme Court nominees.

Bottom line: NO DEAL on avoiding a filibuster.

* I have corrected a mistaken version of the pre-1949 situation.

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