Backseat Nuclear

Yesterday the Senate voted to change its rules to determine that a 60-vote supermajority requirement does not apply to Supreme Court nominations.  The decision means that it will no longer be possible to filibuster Supreme Court nominations, which now can be approved by a simple majority vote.  That reality, in turn, clears the way for Neil Gorsuch to take a seat on the nation’s highest court.

Although everybody has called the procedural change “the nuclear option,” this whole spiraling process has always struck me as less like a tense, world-threatening confrontation between countries equipped with atomic weapons and more like a dispute between two bored and bratty kids sitting in the back seat of the family car.  Things escalate, suddenly the kids are pushing and shoving and yelling while the parents in the front seat try to break things up and calm things down, and in the end each red-faced kid blames the other for starting it.

In this case, Republicans blame Democrats for being the first to exercise the nuclear option, and Democrats respond that Republican intransigence forced that decision.  Republicans blame Democrats for reflexively opposing President Trump’s nomination of Neil Gorsuch to the Supreme Court, despite his obvious qualifications, and Democrats respond that the Republicans’ refusal to even consider President Obama’s nomination of Merrick Garland, who also was qualified for the Supreme Court, is what created the current atmosphere.  You really wondered what the parties were going to do absent this procedural change — automatically oppose all Supreme Court nominations by the President of the opposing party until the Supreme Court itself has vanished through age and attrition?

During those grim family car trips, the squabbling kids calm down, the journey continues, and the parents breathe sighs of exasperation and then relief.  Is that going to happen here and — as the parents in this scenario — how are exasperated American voters going to react?  The filibuster was a means of preserving some modicum of power for the minority and of requiring at least a nod to civility and consensus-building, but it also was a self-imposed rule that allowed individual Senators to feel self-important.  If it’s gone, it means that Senatorial privileges have been reduced and that those depictions of the U.S. Senate as “the world’s greatest deliberative body” inhabited by statesman have been further undermined, because true statesmen, regardless of party, would never have allowed things to reach this embarrassing level.  

But, in this day and age, is anyone really surprised that the U.S. Senate is home to a bunch of partisan hacks, on both sides of the aisle, who have put party and interest groups ahead of the national interest?

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

There are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.