The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
Ah filibuster, my old friend, we meet again. This time Supreme Court nominee Neil Gorsuch brings us together.
Gorsuch seems like a nice guy, much like Merrick Garland, his erstwhile predecessor in seeking to fill Antonin Scalia’s vacant Supreme Court seat. Who would have ever predicted that two such stand-up fellows would precipitate so much ugliness?
As we enter the end game for replacing Scalia, Gorsuch’s nomination is poised to drive a nasty confrontation between Senate Democrats and Republicans over the future of the filibuster. Both sides, driven by their own internal forces, may very well regret the outcome.
Changes to the filibuster happen rarely. It took more than 100 years for the Senate to create a mechanism, cloture, to end a filibuster. Then about another 100 years later, in 2013, Senate Democrats ended their use for judicial nominees and presidential appointments, with one major exception: they kept it in place for Supreme Court nominees.
Now, this surviving remnant of the filibuster for personnel matters is in peril. Senate Minority Leader Chuck Schumer has announced that Democrats will filibuster Gorsuch. In response, Senate Majority Leader Mitch McConnell (R-KY) has signaled he will gut the personnel filibuster, which will allow a Supreme Court nominee to be approved with a simple majority.
“Make no mistake: If we do hold the line with 60 votes, Mitch McConnell will change the rules the next day,” Sen. Kirsten Gillibrand (D-NY) told the New York Post. “I do not have any hope that he won’t change the rules the minute he doesn’t get his way. So it likely will be 51 votes, regardless…”
Democrats are blasé at the prospect of the filibuster’s elimination. Maybe, they hope, the filibuster will hold? If not, there is no harm in the eradication of something useless. As New York’s Jonathan Chait notes: “It is very odd to argue that Democrats should value the existence of a weapon they can never use.”
A Democratic filibuster of Gorsuch, then, is almost certainly a symbolic act, a signal to the base of dedication to resistance, a dramatic flourish. But it has no hope of success, if success is defined as blocking his ascension to the Court. That is not to say that Gorsuch does or does not merit sincere opposition. We’re talking tactics here, not whether he should be on the Supreme Court or whether the Garland obstruction warrants retribution.
On the Republican side of the equation, if the GOP caucus needs to kill the Supreme Court filibuster to get Gorsuch confirmed, they will. Their shocking and unscrupulous blockade of the Garland nomination shows how far they will go to maintain control of the Supreme Court. As they executed the Garland maneuver, Republican Senators learned that they would neither pay an electoral nor an institutional price for their action. Eliminating the filibuster is nothing in comparison.
The filibuster gets a lot of stick. Almost all of it is driven by transient frustration. Filibuster blocking health care legislation? Time for filibuster reform. Filibuster delaying defunding Planned Parenthood? Get rid of it. Despite regular cries for reform, the filibuster has mostly persisted for a simple reason: every Senator knows how much he or she needs it. At one point or another, every Senator has benefited personally or their party has from the rule.
So, it’s odd that a provision that has so much history and that has been resistant to change for so long may soon undergo major surgery in the blink of an eye.
Of course, a Supreme Court seat is not a short-term issue. Just 49-years-old, Gorsuch promises to be on the Court for a long time. Confirming him (or not) will affect the institution for a generation.
Eliminating the filibuster for Supreme Court seats will have long-term implications for the Senate. Right now, the filibuster seems like a useless weapon; easy to destroy without consequence. In the current context, with the Senate’s dysfunction on an upward trajectory, the attitude makes sense.
But it may be worth considering the filibuster’s value for future Senates. Confirming a Justice is a momentous vote. Requiring, as the filibuster does, that a Supreme Court nominee can garner a super majority, forces a level of moderation and temperance in the selection process. In effect, the prospect of a filibuster helps ensure that the nominee really is in the mainstream and unlikely to abuse the power of the office. This is exactly why the Democrats kept the filibuster in place in 2013. It was actually a gesture of good faith to Republicans at the time.
A lot has changed in the intervening four years. The Senate is in a more advanced state of break down. But we can dream of future Senates, where effectiveness and comity are important values. In those Senates, the filibuster for Supreme Court nominees would still serve a purpose. Think of the Supreme Court filibuster as feed corn, then. You can’t eat it today, but plant it and reap future benefits. Throw it away at your peril.