The WSJ has this editorial on the looming filibuster of Judge Gorsuch's nomination to the Supreme Court and the likely use of the "nuclear option" by the Republicans.
The WSJ says, "At least 41 Democrats led by Minority Leader Chuck Schumer have also committed to filibuster Judge Gorsuch on the Senate floor, so he will need 60 votes to be confirmed." Um, I'm pretty sure that if 41 are committed against cloture, there is no possibility of getting 60 votes. Unless maybe we go back to the 1845 plan of breaking up Texas.
"Mr. Schumer is howling that Republicans stole this Court seat because they didn't give a vote to Merrick Garland last year." I previously noted that Senator Biden said he was prepared for exactly the same kind of blockade in the last year of President George H.W. Bush's presidency. But wait, there's more.
This story in Politico from July 27, 2007 reported:
The WSJ says, "At least 41 Democrats led by Minority Leader Chuck Schumer have also committed to filibuster Judge Gorsuch on the Senate floor, so he will need 60 votes to be confirmed." Um, I'm pretty sure that if 41 are committed against cloture, there is no possibility of getting 60 votes. Unless maybe we go back to the 1845 plan of breaking up Texas.
"Mr. Schumer is howling that Republicans stole this Court seat because they didn't give a vote to Merrick Garland last year." I previously noted that Senator Biden said he was prepared for exactly the same kind of blockade in the last year of President George H.W. Bush's presidency. But wait, there's more.
This story in Politico from July 27, 2007 reported:
New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President [George W.] Bush "except in extraordinary circumstances."
"We should reverse the presumption of confirmation," Schumer told the American Constitution Society convention in Washington. "The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito."So it's okay for the majority party in the Senate to refuse to confirm the last-year President's nominee if it perceives the court to be "out of balance." The "liberal" wing of four justices is frequently joined by Justice Kennedy, so replacing Justice Scalia with a fifth liberal vote would definitely have tilted the court.
By any objective measure, the Republicans did nothing that Senator Schumer did not say he was ready to do himself. Politics can be a nasty business at times, but all of this outrage is really absurd.
If the Democrats really force the Republicans to invoke the nuclear option, they surely will. In the short term, that means that any more vacancies that occur in the next three years can be filled with a vote of Republicans alone, assuming they hold the Senate in 2018. (And given the map, that's a pretty good assumption.)
Long term, the Republicans will have given up the ability to block truly awful nominations in the future. So when the pendulum swings the other way at some point (and it always does) and President Kanye West nominates Lady Gaga to the Supreme Court, the Republicans won't be able to block it. I don't know if that long-term effect is really a loss, though, because even if Republicans refrained from the nuclear option now, the Democrats would use it when it suited their interests anyway.
So Justice Gorsuch will be sworn in to hear the April argument calendar. Then when one of the octogenarian justices retires the Democrats will scream to no avail, as a solid fifth conservative is confirmed with no threat of filibuster.
I'll take President West and Justice Gaga over President Warren and Justice Karlan.
If "truly awful" nominees (and I count Sotomayor in that category), would get through, the remedy is to lay the blame on those who voted for them.
The demise of the filibuster for judicial nominees will lead to more of that.
Imagine the power of a coordinated attack on Justices Breyer and Ginsburg for their votes in Zavydas v. Davis? Imagine Dems having to justify judicial choices in the same mold as Breyer and Ginsburg.
Maybe the nuking of the filibuster will expose the judiciary to a lot more criticism, which, on the whole, is healthy.