The Supreme Court and the Filibuster

This week has the potential to be a significant week in Senate history.  Over the past two presidencies, there was a rise in the use of the filibuster to block executive branch and lower court nominees.  During the George W. Bush presidency, there were enough Democratic and Republican senators willing to work out a deal in which the Democratic senators agreed to vote for cloture on most nominations and the Republicans agreed not to invoke the “nuclear option” (exempting such nominations from the three-fifth’s rule for cloture by the vote of a majority of the Senate).  During the Barack Obama presidency, there were not enough Republican senators willing to make such a deal and the Democrats were forced to go with the nuclear option on such executive branch and lower court nominees.  However, the normal cloture rules were left in place for Supreme Court nominees.

As a starting point, here is the tentative schedule for the week.  First, on Monday, the Judiciary Committee is scheduled to vote on the nomination of Neal Gorsuch.  Right now, it appears likely that the committee will approve that nomination by a majority vote.  Assuming that the Committee sends its report on that nomination to the Senate on Monday, that would trigger Rule XXXI which provides that (except by unanimous consent which will not be given) the Senate may not vote on a nomination on the same day that the nomination is reported to the full Senate.   The Republicans will then attempt to call the matter up for a vote by unanimous consent on Tuesday.  At least one Democrat will object, and the Republicans will file a cloture motion.  Under Rule XXII, that motion will probably come up for a vote on Thursday and would take sixty votes to pass.  Based on current whip counts, those sixty votes will not be there.  If somehow, the Republicans get the sixty vote or invoke the nuclear option, Rule XXII would permit thirty more hours of debate resulting in a vote between Friday and Monday the 10th.  (Technically, the Easter state work session is currently scheduled to start on the 10th and go through the 21st.  The last two weeks of argument in this year’s Supreme Court term are the weeks of April 17 and April 24.  So if Judge Gorsuch is confirmed this week, he could sit on the last thirteen arguments of this term.  If the final vote takes place after April 21, Judge Gorsuch will not sit on any argument until the next term beginning in October.)

Assuming that the cloture vote goes as currently anticipated, the Republicans will have three options.  Option number one would be to use the Easter recess to put pressure on vulnerable Democratic senators.  Right now, the two most vulnerable Democratic senators (Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota) seem likely to vote for cloture, but there are other Democratic senators from other states that Trump won by wide margins.    While there are ten Democratic senators on the 2018 ballot from states that Trump won (and Maine’s independent Senator is not necessarily going to join the Democrats on this issue), half of those senators are from swing states.  The only two other Senators who come from states that were not too close to call in 2016 are Senator McCaskill from Missouri and Senator Donnelly from Indiana.  Unless the Democratic senators hear from party activists that party activists do not really care about this issue, the vote is unlikely to change much after the recess.  On the other hand, the Republican leadership would be in a stronger position to invoke the nuclear option after the recess.  (The more moderate members of the Republican caucus might believe that the Democrats should at least be given some time to debate and make their case before the nuclear option is invoked.)

Option number two would be for the Trump administration to decide to make Judge Gorsuch a sacrificial lamb.  The last two times that the nuclear option was on the table, the argument in favor of invoking the nuclear option was a pattern of obstruction.  If Trump were to withdraw Judge Gorsuch and nominate a slightly more moderate candidate, continued resistance from the Democratic caucus could be painted as “obstruction.”  That circumstance would make it easier for Republicans to claim that they had no choice but to invoke the nuclear option to keep the Supreme Court functioning.  (Of course, a combination of both option one and option two is a possibility — having a second vote on cloture after the recess followed by a replacement nominee.)  Option two would give the Republican senators more coverage, but my own opinion is that President Trump does not care about helping Republican senators.

Option number three (and what most expect to happen) would be the Republicans immediately invoking the nuclear option after the cloture vote.  What the nuclear option involves is appealing the ruling of the chair that sixty votes are need for the cloture motion to pass.  A 51-49 majority of the Senate (or 50-50 if Vice-president Pence breaks the tie) could overrule the decision of the chair and find that the cloture motion passed even though it only got 54 or 55 votes.

Reaching this crisis this early in a new President’s term reflects how divided our politics have become.  My belief is that there is a significant segment of the population that believes that senators should not filibuster a president’s nominees without a very good reason.  (For example, Justice Thomas who, more than any justice in U.S. history, deserved a filibuster got an up-down vote on confirmation.)  On the other hand, I believe that a significant segment of the population would agree that the Senate minority should be able to block a Supreme Court nominee in an exceptional case.  At least, as of now, the Democratic caucus has not made a convincing case that Judge Gorsuch is such an exceptional case.

While this center represents a significant segment of voters in American politics, the center has unfortunately allowed itself to become less relevant.  Too few people vote in party primaries, giving less moderate groups control over the nomination process.   It is hard to motivate people by being sensible.  It is hard to motivate people with complex solutions to complex problems.  While the Republican Party has effectively been taken over by the alt-right, the Democratic Party  has not been entirely exempt from attempts to primary challenge incumbent Democrats for being too willing to compromise and find bipartisan solutions.  Even in general elections, split ticket voting has declined (as it should) and voters tend to vote on overall impressions on how things are doing (with limited exceptions for single issue voters who tend toward the extremes anyhow) with limited focus on individual issues.  Because individual issues no longer matter, there is no incentive to find a compromise solution on those individual issues.  Instead, the goal of American politics has unfortunately become to convince centrist voters that the blame for the failure to solve problems rests with the other party.  And this blame game has resulted in the center splitting in a predictable factor making turnout of the base (rather than winning over the center) the key to winning elections.

So we are facing a critical moment in Senate history.  While what happens next may be (in the long term) the “right” approach to judicial nominations, the decisions are likely to be made for all the wrong reasons.  It would be nice if everybody could take a step back and think about the way out of this mess, but Senator McConnell cares about power and President Trump hates being told “no.”

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