The Corner

Law & the Courts

Ted Kennedy Killed the Judicial Filibuster

Every news outlet in America is reporting that the Democrats have secured enough votes to filibuster Judge Gorsuch. At the same time, it is equally universally understood that the GOP is almost certainly planning to invoke the so-called “nuclear option” to confirm him through majority vote. No doubt the next several days will be dominated by thinkpieces wondering What This Means and pondering How We Got Here, but let me make a modest suggestion. This is Ted Kennedy’s fault.

I was eighteen years old when he delivered his infamous summary of “Robert Bork’s America:”

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

This wasn’t a legal critique, it was character assassination, and it was character assassination that worked. One of the most thoughtful and qualified judges ever nominated for the Supreme Court was defeated as part of a pure political power play, one justified through slanderous and scandalous rhetoric. 

Senate traditions — like the filibuster — are maintained not just through inertia but also by good faith. While the system can tolerate the occasional exploitation, it can’t tolerate systematic exploitation, and “Borking” help transform the advise and consent process from a safeguard against unqualified nominees to an exercise in pure power politics. For almost 30 years, that transformation benefited Democrats exclusively. They consistently obtained the Supreme Court judges they wanted, while Republicans were often forced to nominate less well-known jurists in an effort to find someone who would embody conservative judicial values while still securing sufficient votes for confirmation. Democrats batted a thousand with their nominees. The GOP struck out more than once.

This one-sided political war ended in 2016 when Senator McConnell decided to behave exactly as he knew the Democrats would and blocked Merrick Garland while he waited on the results of the 2016 election. The Democrats howled, but no honest person in DC thought that if the roles were reversed Harry Reid would have allowed a vote on, say, a replacement for Ruth Bader Ginsburg.

The war continues in 2017. The Democrats are on the verge of a filibuster justified by incandescently idiotic arguments. The Republicans will almost certainly respond with yet another power move. A Senate tradition likely dies this week. I wonder if Ted Kennedy would be proud of this part of his legacy? Time will tell, I suppose. 



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