I’m pleased to share the cover of the new print issue of National Review. My piece, titled “Servants of the Constitution,” explains how the Court’s overturning of Roe v. Wade and Planned Parenthood v. Casey marks a crowning achievement of the conservative legal movement. I also highlight three important landmarks on the long path to Dobbs: the conservative revolt against George W. Bush’s nomination of Harriet Miers in 2005; Senator Mitch McConnell’s blockade of President Obama’s effort to fill the Scalia vacancy in 2016; and Senate Democrats’ filibuster of President Trump’s nomination of Neil Gorsuch in 2017.
An excerpt:
In the annals of Supreme Court confirmation battles, no decision is likely to be seen as more obviously idiotic and consequential than Senate Democrats’ launch of a filibuster against President Trump’s nomination of Neil Gorsuch to the Scalia vacancy.
Senate Democrats had initiated the filibuster — defeating the 60-vote threshold on cloture needed to move to a final vote — as a partisan weapon against George W. Bush’s appellate nominees in 2003. In 2005, Senate Republican leadership tried, but failed, to abolish the judicial filibuster, as seven Republicans, led by John McCain, jumped ship. But in 2013, after Republicans had used the filibuster fewer times against Obama’s nominees than Democrats had against Bush’s, Democratic leader Harry Reid succeeded in getting his majority to abolish it for lower-court nominees. Reid left the filibuster in place for Supreme Court nominees. Why? Because abortion-rights groups feared that abolishing it would make it easier for a Republican president to have a Republican-controlled Senate confirm the nomination of an anti-Roe justice. Far better, they urged, to wait to abolish the Supreme Court filibuster in order to confirm a Democratic president’s nominee. And just two weeks before the 2016 election, that’s exactly what Reid promised would happen if Republicans dared to filibuster President Hillary Clinton’s nominee for the Scalia vacancy.
In addition to being eminently qualified, Gorsuch had earned respect across ideological lines. By filibustering his nomination at the outset of the Trump presidency, Democrats made clear that they would filibuster any Trump nominee, and they thus gave McCain and other reluctant Republicans “no choice” (McCain’s words) but to vote to abolish the Supreme Court filibuster. Schumer and other Democrats knew at the time that what they were doing was very stupid, but their perfervid base insisted on it.
Set aside delusions about Mitch McConnell’s supposed omnipotence in herding Republican senators. If the filibuster hadn’t been abolished during Gorsuch’s confirmation process, Brett Kavanaugh would never have been confirmed, and probably would never have been nominated, for Justice Kennedy’s vacancy in 2018. Nor would Senate Republicans have been able to confirm any conservative (much less Amy Coney Barrett) to replace Ruth Bader Ginsburg in the few months between her death in mid-September 2020 and the end of the Senate’s session.
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