Bench Memos

Law & the Courts

Gridlock Chuck’s Political Game To Blow Up Senate Tradition

Senator Schumer has publicly announced that he plans to lead a filibuster against Judge Gorsuch’s nomination to the Supreme Court. That’s no surprise. We all knew Gridlock Chuck would spring into action sooner or later. What surprises me quite a bit more is how much credit reporters are giving him for standing up for the traditions of the Senate. That is an inaccurate way of framing things, to say the least.

For decades, Democrats have been playing hardball when it comes to using the U.S. Senate as a tool to turn the federal courts into a rubber stamp for the left’s political agenda. They don’t want judges like Judge Gorsuch, who are willing to decide cases without regard to their outcomes – they want politicians in robes.

Senator Graham described it well: “What Senator Schumer is doing is changing 200 years of precedent in the Senate because he can not stand the pressure from the left.”

It was Schumer himself who orchestrated the 2003 filibuster of Miguel Estrada to the D.C. Circuit, the first time in Senate history that a judicial nominee with clear majority support had even been denied confirmation due to a filibuster. On seven cloture votes, Estrada received majority support each time, but never enough votes for cloture.

In fact, that era fundamentally transformed the way the Senate handles judicial nominations. The successful and strictly partisan filibusters of ten Bush appellate nominees shattered Senate traditions. The principle of self-restraint was discarded. While the right to filibuster existed throughout Senate history, it was not exercised to block nominees brought to the Floor with majority support from receiving confirmation votes. 

Until 2003, cloture motions to end a filibuster were filed on only 17 judicial nominees.  Apart from Supreme Court nominee Abe Fortas in 1968 – a nominee widely regarded as a crook, who faced broad bipartisan opposition – all were confirmed.

Prior to 2003, judicial confirmation battles occurred, but almost always without attempted filibusters. These included Justice Clarence Thomas, who was confirmed 52-48 on an up-or-down vote and many appellate nominees who had majority support but significant minority opposition. In these decades, even through highly contentious confirmation processes the principle of self-restraining the filibuster on judicial appointments was maintained.

Exercising the constitutional option on the Gorsuch nomination would reinforce Senate tradition that judicial appointments brought to the Floor are not blocked by filibuster and receive a confirmation vote.

And, lest you have any doubt that Democrats would exercise that option if given the opportunity, I’ll say two things:

First, Democrats have already done it, with respect to lower court nominees, so we have previous behavior to inform our understanding of how they might behave in the future.

Second, when Senator Reid and Vice Presidential Nominee Tim Kaine believed Hillary was going to win the presidency, they made it explicitly clear that they would invoke the constitutional option to confirm her Supreme Court nominees.

In summary, Gridlock Chuck has made it clear time and time again that he is willing to destroy every norm and tradition in the Senate for the sake of turning our federal courts into rubber stamps for a left-wing political agenda. Now he is at it again, by threatening to make Judge Gorsuch the first Supreme Court nominee in U.S. history with majority support to fail because of a filibuster. Republicans appear poised to restore the tradition of the Senate by invoking the constitutional option and voting to confirm Judge Gorsuch with a bare majority, and I look forward to standing with them if it comes to that.


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