Senate Poised to End Judicial Filibusters

As the confirmation of Neil Gorsuch works its way toward a final vote in the Senate, a pair of questions has animated coverage: will the Democrats filibuster the nomination, and, if they do, will the Republicans engage the “nuclear option” of removing the filibuster? As of this writing, it appears that Senate Minority Leader Chuck Schumer has enough Senators on board to go through with a filibuster, and that Senate Majority Leader Mitch McConnell intends to turn the key and launch the nukes.

All of this may be confusing for those whose familiarity with the filibuster comes from films, so let’s back up and walk through the whole thing. Under the Senate’s rules, any one Senator can hold up debate indefinitely just by continuing to talk. This is the classic, Mister Smith Goes to Washington filibuster, which can only be halted by a vote of 60 Senators and virtually never happens anymore.  Today, a Senator threatens to filibuster, and if there aren’t 60 Senators willing to tell him no, the bill just goes away.

However, there is one crucial point here: the Senate only works this way because the Senate decides to work this way. The Constitution grants each house of Congress the power to “determine the Rules of its Proceedings,” and specifies how members are selected, how many votes each member gets, and how many members must be in attendance to do business (source: my pocket Constitution). Beyond that, each house can conduct itself as it pleases. So far, Congress generally tries to maintain consistent rules from year to year, only modifying them at the beginning of a given session. But nothing forces them to do it that way.

This brings us to the nuclear option, which refers to the current majority deciding that filibusters no longer exist (or no longer exist for certain types of business). They simply amend the rules of the Senate by a simple majority vote, and the deed is done. The next Congress could undo that rule change, or bring back the filibuster but require 70 votes to halt it, or bring it back but only if the Senator speaks continuously and in rhyming couplets.

If the rules can change at any moment, how can they matter? That’s the question, and the reason that ignoring how things have been done in the past is dangerous. Democracy only works if everybody involved – citizens, legislators, bureaucrats – views the decisions of the legislature as legitimate. Following consistent rules, even when you have the power to break or rewrite them, is one of several ways of building that legitimacy.

The end of the filibuster for Supreme Court justices does not mean the end of the filibuster for everything: as of this writing, there is no indication that the ability to filibuster bills will be removed. We do not require much imagination, however, to see the current trend of partisanship in the Senate leading to its removal for legislation, too, which raises a question for us: what value does the filibuster hold?

The filibuster originated more or less as an accident: in 1806, former Vice President Aaron Burr successfully recommended a change to the rules of the Senate that left no procedural mechanism to end debate. The first filibuster did not occur until 1837, against a bill to charter the Second Bank of the United States; the ability to vote to end debate, called “cloture,” did not exist until 1917. The filibuster was wielded theatrically against both the 1957 and 1964 Civil Rights Acts, though both ultimately passed. Use of the filibuster gradually increased after a rules changes in the 1970s allowed, first, for other Senate business to proceed while a Senator was filibustering (they simply divided the day into periods dedicated to debate on one bill or another), and, second, for Senators to filibuster without talking themselves hoarse.

It’s difficult to tell exactly how often filibusters occur, because the best measurement for them is the number of times cloture is invoked, and cloture is invoked for reasons other than filibustering. Filibusters or their threat have killed many bills over the years, though they never halted a non-Supreme Court judicial appointment until the George W. Bush administration, and have stopped a Supreme Court nomination only once.

Ultimately, the Senate is governed only by the scanty rules laid out in the Constitution; the rest is precedent, tradition, and gentlemen’s agreements. The demise of the judicial filibuster would not change this fact. It would, however, signal that the Senate no longer recognizes that the strenuous objections of a minority can thwart the will of the majority. In my view, that is the greatest loss if the filibuster is revoked. The filibuster represents the idea that a minority party deserves power–real, measurable power, not just the right to be a voice in the wind–even though the majority isn’t obligated to grant or respect it, and even when that minority position is wrong.

John McCain is wrong when he implies that this is the beginning of the end of the Senate. Longer terms, statewide elections, and smaller numbers will all conspire to keep it distinct from the House, both slower-moving and with greater power per member. But this impending maneuver is a symptom of long trends: partisan polarization, the neglect of compromise, and the disdain for good government. Address those problems, and the filibuster won’t be necessary; let them continue to fester, and the filibuster won’t be of any use stopping them.

Garland vs. Gorsuch

Neil Gorsuch sat through three days of confirmation hearings in what is turning out to be the most contentious Supreme Court nomination process since Robert Bork was rejected by Democrats in 1987. Gorsuch has been responding to an onslaught of questions aimed at revealing his political biases and how he might rule in future Supreme Court proceedings. To the chagrin of Democratic lawmakers Gorsuch has been expertly deft in answering these questions, rarely giving a glimpse into his personal beliefs or motivations behind his previous rulings and dissents. When asked specifically on his thoughts of the preceding nominee, Merrick Garland, Gorsuch has declined to comment on “politics”, other than to say that he respects Garland as a man and a judge.

This Supreme Court nomination is extremely rare in the sense that it comes on the heels of a nomination that was not acted upon by the Senate. The last time in America’s history this happened was in 1881 when President Rutherford Hayes nominated Stanley Matthews just a few weeks before the end of his term. The Senate declined to act and Matthews was held in limbo until President James Garfield renominated him. Matthews was then confirmed by the Senate with the slimmest margin in Supreme Court history, 24 to 23. Merrick Garland was nominated as a Supreme Court justice by President Barack Obama on March 16, 2016. This would be the end of Garland’s prospects for the high court, for Republican Senators had already refused to consider any of Obama’s nominees. As of this writing the Supreme Court of the United States has had a vacant seat for 373 days.

The defiant treatment of Obama’s Supreme Court nominee by the Republican Senate has created a hopeless situation for Washington Democrats. They must either put up a fight and follow through with their threat to filibuster, which would almost certainly be dismantled with a rule change from the Senate, or try to save what little is left of precedent in these matters and confirm Gorsuch as the next Supreme Court Justice of the US. Despite some calls to delay the process due to current FBI investigations into President Donald Trump’s alleged connections with Russia, the confirmation of Gorsuch seems at this point to be nearly inevitable.

The only person with complete control of this situation is Neil Gorsuch himself. As an originalist and textualist, he could very well be expected to infer from the constitution that Garland should be the one getting grilled in these confirmation hearings. Article Two of the constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court…“ It is hard to imagine a world where these rules were meant to allow a minority party to stall the nomination to the highest court in the land indefinitely and leave one of the three co-equal branches of government under strength, yet this is exactly what the Republicans have achieved. During his three days of hearings Gorush has repeatedly touted himself a man of the law, with no influence by political party or personal beliefs. If he believes what he says, he may need to rethink his current position and what it means for the future of law in the United States.

We’ll update this article with any breaking news today.

Update on the 45th President’s Confirmations

All Presidents have the opportunity and obligation to fill numerous positions in government with appointments. Many of these jobs require a confirmation from the Senate. For some appointees, this process is straightforward as they have the experience and reputation to make the confirmation a relatively easy decision for the Senators. The vast majority of appointees in recent history that have come before the Senate have been confirmed and in short order they begin the work of governing at the pleasure of the President.

A few Presidential appointees find the process difficult, with endurance during hearings being a skill they find necessary. Senators from all parties are given the opportunity to interrogate these individuals in person during a Committee Hearing that can last hours, with more questions being asked in writing that can take days, and many sleepless nights for staffers, to fully answer.

The current administration has been in the midst of the, sometimes chaotic, bustle of filling out Cabinet, Judiciary, and other high-level appointed positions throughout the first few weeks of the President’s term. Within the first month, many positions were announced and subsequently confirmed. Notably, the Secretary of Veterans Affairs, David Shulkin, is the only unanimous confirmation. Extraordinarily, the Secretary of Education’s, Betsy DeVos, confirmation vote was split 50-50, requiring the Vice President, Mike Pence, to cast the deciding vote to confirm. It was the first time in history that the Vice President was required to break a tie for a Cabinet level position confirmation.

Although many posts have been filled, many more either remain awaiting hearings and confirmation from the Senate or to simply have an appointment announced by the President. At the time of this writing, the next Senate Committee Hearings are scheduled on March 14, 2017 for Trade Representative appointee Robert Lighthizer and on March 15, 2017 for the replacement appointee for Secretary of Labor, Alex Acosta. Previously, Andrew Puzder withdrew his nomination for Secretary of Labor under the realization that his confirmation was not likely.

Other high-level Cabinet positions remain vacant, with the departments being run by acting Secretaries. These include Agriculture Department where Sonny Perdue is nominated and the aforementioned Labor Department with Alex Acosta nominated. Of note, the Director and Deputy Director positions for the the Office of Science and Technology Policy have not been given appointments, as well as the Administrator of the National Oceanic and Atmospheric Administration, two departments that are currently in limbo as to what their direction going forward is to be and what sort of funding they can expect.

On the Judiciary side of things, the President tapped Neil Gorsuch to fill the ninth seat on the Supreme Court. The position had been vacated by the death of Justice Antonin Scalia eleven months prior and held open by the Republican Senatorial obstruction of then-President Obama’s nomination of Merrick Garland, a widely respected judge that had been previously named specifically as a candidate that both parties would be able to confirm.

Neil Gorsuch’s Senate Judiciary Committee hearings are scheduled to begin March 20, 2017. This committee consists of nine Democratic and eleven Republican Senators, and is expected to vote in favor of Gorsuch’s nomination to proceed to the full Senate for confirmation. For those Senators that oppose the Gorsuch nomination for any reason, be that for the judge’s positions or the principled matter of Merrick Garland not having been even considered in Committee, the threshold for a Supreme Court Justice is a simple majority with the option of a filibuster which would then move that threshold to a supermajority of 60 votes required for confirmation. The option to abolish the filibuster is on the table and encouraged by some, including the President, if the contentious vote comes down to party lines. With only 52 votes for the majority Republicans, peeling off the necessary 8 Democratic votes may be an insurmountable obstacle, and the chance to influence the balance of the Supreme Court for a generation may well spell doom for the filibuster, one of the last remaining tools for the minority party to defend against what they see as a tyranny of the majority.