At 9:30 AM on 10 April 2017, Neil Gorsuch’s official job title changed from “Judge for the U.S. Court of Appeals for the Tenth Circuit” to “Associate Justice of the United States Supreme Court.” Welcome to the bench, Justice Gorsuch, and congratulations.
Normally, any nomination to the bench requires 51 “yes” votes on the nominee and 60 votes to proceed with the actual confirmation vote (in other words, a Senator can agree to hold a confirmation vote on a nominee he/she disagrees with, or vote to continue a debate and postpone the nomination). This means that every Supreme Court nominee must meet a certain level of bipartisan support, because we rarely see situations where the nominating President’s party controls all sixty necessary seats. Presidents Bush and Obama managed to clear this threshold with their nominees, maintaining a general atmosphere of bipartisanship and good vibes. Even Justice Samuel Alito, who only received 58 votes in his actual confirmation vote, cleared the 60-vote threshold when 72 Senators (including more than a few Democrats) decided to go ahead with the vote.
As you all know by now, this threshold no longer exists for Supreme Court nominees. On Thursday, Majority Leader McConnell held a simple majority vote on Senate parliamentary procedures, eliminating the Supreme Court filibuster. The reason? Democrats were trying to filibuster then-Judge Neil Gorsuch. If you read my previous post, the 41-Vote Calculation (Part I) this is what I call the aftermath of Scenario One.
At the beginning of last week, Minority Leader Schumer cleared the 41-vote “anti-Gorsuch” threshold when he gained the support of all but three Democratic Senators. In a normal world, this would only happen if Gorsuch were a horrible candidate with no respect for the Court and no legal mind whatsoever, but here it’s different. It turns out Gorsuch is a pretty vanilla conservative, and unlike Harriet Miers or Robert Bork, he’s not that objectionable of a candidate. Sure, I don’t agree with him on most things and there’s that little issue about blatantly plagiarizing medical texts, but philosophical disagreement isn’t grounds to block a vote on a Supreme Court nominee, just grounds to cast a “nay” vote.
I may be stating the obvious, but the main reason the Senate Democrats tried to block him was payback for the way that Majority Leader McConnell ignored last year’s nomination of Judge Merrick Garland. Schumer knew it was never going to work, but he did it anyways.
Because it’s a fight, and that’s how Democrats roll now.
Come to think of it, the casualties on “our side” weren’t that severe. Gorsuch got to the bench, which was gonna happen no matter what. Instead of replacing someone like Ruth Bader Ginsburg or Stephen Breyer, he’s replacing the late Justice Antonin Scalia, so the Court isn’t getting any more conservative than it was before Justice Scalia’s passing. Three vulnerable Democrats (Sens. Manchin, Heitkamp, and Donnelly) defected, but out of political necessity more than anything. Even the nuclear option hasn’t done that much damage, at least in the short term. There was no practical scenario in which Senate Democrats could have filibustered one of Trump’s appointees without McConnell pressing a metaphorical big red button. The same applies to future nominees, too. Unless Trump truly loses his few remaining marbles and appoints a disgraced lawyer with a fake Bachelor’s degree, his nominees will have the support of most, if not all, the Senate Republicans.
Does the nuclear option set a bad precedent for bipartisanship? Yeah. Is it the end of the world? Not really. As long as progressive activists don’t take Manchin/Heitkamp/Donnelly’s votes the wrong way and try to primary them (again, they may be some of the most conservative Democrats in the Senate, but they’re the only liberals who can come from West Virginia, North Dakota, and Indiana these days), I don’t anticipate any short-term political losses among Democrats. Besides, Democrats and Republicans alike have been sliding towards nuclear parliamentary procedure for decades now, so it’s not like it could have been averted last week.
Trump got his nominee. This battle is a loss, but it’s no devastating blow. We’ll get him next time, I guess.
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