As he took his last stand against confirming Judge Neil Gorsuch to the Supreme Court yesterday, Senate minority leader Chuck Schumer defended Democrats’ filibuster on remarkably shaky grounds:
https://youtube.com/watch?v=Fw9Q9gCTUY4
When our body politics is veering too far to the right or to the left, the answer is not to dismantle the guardrails and go over the cliff, but to turn the wheel back toward the middle. The answer is not to undo the guardrails, the rules, it’s to steer back to the middle and get a more mainstream candidate. With respect to the Supreme Court, the 60-vote threshold operates as a guardrail against judicial extremism.
When 60 votes — typically a bipartisan supermajority — are required for confirmation, nominees tend to be in the judicial mainstream. The only nominee on the court to be confirmed with less than 60 votes was Justice Thomas who is widely recognized to be the most ideological, extreme Supreme Court justice.
This statement has so many problems that it is hard choosing where to begin. First off, it is factually incorrect: Clarence Thomas wasn’t the only justice to be confirmed with fewer than 60 votes; Justice Samuel Alito was confirmed 58-42. Secondly, it indirectly dismantles Schumer’s 60-vote-threshold canard because neither Thomas nor Alito faced a filibuster even though they were confirmed without 60 votes. Contrary to Schumer’s stance, there was no precedent that Supreme Court nominees require 60 votes.
Charging Thomas with ideological “extremism” is a naked attempt by Schumer to prop up the notion of a “living Constitution.” Thomas and Gorsuch have records that reflect stalwart originalism, and Schumer’s caterwauling about a “judicial mainstream” (which only includes those on the left) shows how Democrats have given into radical jurisprudence. As David French articulated, the doctrine of a “living Constitution” has had grave consequences that the country is correctly waking up to.
Schumer couldn’t get his facts right, couldn’t keep his story straight, and ultimately relied on his own extreme ideology regarding the Court. He deserved to see the filibuster abolished, just as Gorsuch deserves to be the next justice of the Supreme Court.