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A New Judicial Era

eye on the news

A New Judicial Era

The first post-filibuster nomination brings the Senate into uncharted territory. July 10, 2018
Politics and law

President Trump’s selection of Judge Brett Kavanaugh to fill the Supreme Court vacancy created by the retirement of Justice Anthony Kennedy was met with the expected Democratic outrage and promises to derail his candidacy. Kavanaugh’s Senate confirmation hearings, scheduled for September, will likely prove the political battle of the season. They will also mark a new era in High Court confirmation hearings: they will take place in a Senate that has done away with the filibuster.

Dating back to the nineteenth century, the filibuster is a procedural device that lets a numerical Senate minority effectively terminate a nomination or legislation by creating, or threatening to create, endless debate. Recognizing that one senator could use the filibuster to hold up the work of the chamber—remember Jimmy Stewart in Mr. Smith Goes To Washington?—the Senate adopted the cloture rule in 1917 to terminate the action. Invoking cloture initially required a two-thirds vote, but the threshold was lowered to 60 votes in 1975.

History shows, however, that a 60-vote threshold is a high hurdle to clear. Over the last 50 years, one party has held more than 60 Senate seats for only three full sessions: 1967-1969, 1975-1977, and 1977-1979. Otherwise, the absence of a one-party numerical super-advantage necessitated a familiar plan for navigating Supreme Court confirmation proceedings: in need of bipartisan support, nominees would appear as moderate as possible.

Recent nominees have utilized this strategy successfully. In 2005, Samuel Alito charted a moderate path in his confirmation hearings, though he has proved to be one of the Court’s most conservative justices. Sonia Sotomayor and Elena Kagan—reliably liberal, once on the Court—also spoke the language of commonality when they went before the Senate Judiciary Committee in 2009 and 2010. None of the three managed 60 votes in the Senate, but none was subjected to the filibuster, either.

Senate Minority Leader Charles Schumer promised to filibuster Neil Gorsuch last year—payback for Republican senators’ refusal, in 2016, to consider Merrick Garland, President Obama’s Court nominee. But Majority Leader Mitch McConnell had an ace in the hole: the “nuclear option,” forged in 2013 by then-Majority Leader Harry Reid, a Democrat, which abolished the filibuster for lower court judges. Now, McConnell applied the rule change to High Court nominees as well. As a result, Gorsuch was the last justice to be nominated in a process that initially included the filibuster.

This procedural (and constitutional) transformation of the Senate alters the way that the upper chamber deals with presidential appointments—and it will no doubt change the criteria for how presidents pick nominees. Removing the filibuster not only makes it easier for nominees to get confirmed; it also makes it a virtual certainty that more partisans will be nominated, with the most conservative being considered in a GOP-led Senate and the most liberal being assessed in a Democratic-led Senate. The new requirement of a simple majority—51 votes, instead of 60—eliminates the need for nominees to appeal even superficially to the other party.

The effects of this change are apparent already: witness the statements from Democrats rejecting Trump’s nominee before he had even been named. Whether the new Senate conditions for considering Supreme Court nominees will benefit the country remains to be seen. But if the result nets one more justice on the Court who interprets the law based on sound constitutional principle, then it can’t be all bad.

Photo by Kevin Dietsch-Pool/Getty Images

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