The Long-Lost Chance for Truce in the Supreme Court Wars

(Bloomberg Opinion) -- We’ve all paid less attention than we should have to what, in retrospect, is one of Mitch McConnell’s most radical moves: his decision to eliminate the filibuster for Supreme Court nominations. Backed, of course, by Senate Republicans.

In fact, in some ways, it’s a far less justifiable choice than his much more vilified (and celebrated) decision to block efforts by Barack Obama to fill the Supreme Court vacancy in early 2016. I disagree with what McConnell did in totally freezing out the nomination of Merrick Garland. But as many have noted, there’s a good chance that Garland would have been defeated anyway, either in the Judiciary Committee or on the Senate floor. With only 46 Democrats, it would have taken the support of four Republicans to give him a simple majority (with Vice President Joe Biden breaking the tie) — but if Republicans filibustered, it would have taken an improbable 14 Republicans to break ranks. In other words, there’s a good chance Garland, a compromise nominee, was doomed anyway.

That still doesn’t justify refusing to even hold a hearing. But the timing here was important, too. Had the choice been made six months later, many would have considered it reasonable for Republicans to shut down the confirmation process; had it been six months earlier, it would have been entirely irresponsible and outrageous. As it was, I think McConnell acted improperly, but the truth is there aren’t a lot of precedents, and what he did didn’t permanently change the process.

That can’t be said, however, for the immediate decision by McConnell and Republicans to eliminate the filibuster during the confirmation process of Neil Gorsuch.

Yes, Democrats had already gone nuclear in 2013. We can argue all day about whose fault that was, but in any event, it was over and done. The Supreme Court filibuster, however, remained. And there’s a perfectly reasonable argument that the de facto requirement of a supermajority for Supreme Court choices is more important to preserve than it was for lower-court and executive-branch picks.

Was it necessary to go nuclear in 2017? The nomination initially fell short on a cloture vote, with 52 Republicans and three Democrats supporting Gorsuch. So without majority-imposed reform — backed unanimously by Republicans and opposed by all Democrats — the nomination would have been defeated by filibuster. However, it’s not true that all 45 Democrats who opposed Gorsuch had pledged to oppose any of President Donald Trump’s nominees for the vacancy. It’s quite possible that a compromise pick — either a less conservative choice or, more likely, one older than the then-48-year-old Gorsuch — could have brought in five more Democrats. 

And while Republicans, by winning the presidency and a Senate majority, had earned the right to nominate and confirm judges, it was also true that Trump had won the presidency despite failing to win a plurality of the vote, and that the Senate majority was a narrow one. A compromise pick would still have preserved a very conservative court and been a terrific Republican victory in the battle over the vacant seat; it just would have locked it in for fewer years.

More important, it would have signaled something of a truce in the Supreme Court wars. Granted, the truce wouldn’t be, and couldn’t be, binding. Both parties would still have the option of going nuclear and removing the ability of minorities to block Supreme Court picks at some future point. But the way to build comity is by building comity. 

Obviously, in any event, McConnell (and Trump, and the other Republican senators) demonstrated no interest in anything but exploiting their majority to the fullest extent. And so the process has become less and less legitimate, and U.S. democracy grows weaker little by little. 

It didn’t have to be that way.

1. Tom Burke on the Brett Kavanaugh nomination.

2. Paul Poast on countries that might save NATO.

3. Julianne Smith and Jim Townsend on NATO and Trump.

4. See also Heather Hurlburt on Trump at the NATO summit. 

5. And Ross Douthat makes a good point about what might happen within the Republican Party if abortion rights survive Kavanaugh. I agree with Douthat that we likely won’t find out. And I do think he’s underselling how conservative the court will be on a wide variety of important policy areas, assuming Kavanaugh is confirmed.

To contact the editor responsible for this story: Brooke Sample at bsample1@bloomberg.net

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