Senate filibuster dead and buried

The filibuster is dead. Long live majority rule.

Senate Republican leaders tripped the switch Thursday after Democrats vowed to filibuster the confirmation of Neill Gorsuch to the Supreme Court and executed the rule that a super-majority will be required to end debate on the Senate floor.

The filibuster had been rarely used in Supreme Court nominations, but these are rare times, and Democrats had enough votes to stop the nomination with more than 40 votes pledged to force the traditional, 60-vote super-majority to end debate over the nomination. Frustrated by this barricade, Republicans vowed to destroy one of the most hallowed traditions of the Senate, the liberty to continue debate indefinitely so long as a substantial minority of senators allowed such a delay.

Republicans had a nominee in Gorsuch who was as moderate as any Republican nominee could be expected to be. He was well qualified and well respected. In an ideal world, judges like Gorsuch would be confirmed with minimal debate. But this is not an ideal world, and Democrats were united to fight the nomination. Republicans vowed to do anything to get Gorsuch seated on the Supreme Court, even if it meant tearing apart the Senate.

Democrats had some righteous indignation on their side. President Obama nominated a well-respected jurist, Merrick Garland, to replace Antonin Scalia a year ago. Republican Senate Majority Leader Mitch McConnell refused to consider the nomination, contending that the voters in the 2016 election should decide — a unique piece of illogical reasoning in the annals of American politics. Democrats argued that Republicans' refusal to even discuss Garland's nomination was even worse than a filibuster.

Democrats' record in defense of the filibuster has not been pristine. When Obama's federal court nominees languished for months because Republicans filibustered their nominations, Democratic leader Harry Reid pushed through a rule change that eliminated the filibuster in federal judgeships not including the Supreme Court.

Now the filibuster is gone, and no one knows what its demise might mean in the Senate. The hyper-partisanship in Congress can hardly get any worse, and the 60-vote cloture requirement seems quaint in an era of non-stop debate and non-stop campaigning outside the halls of Congress. The death of the filibuster might mean little in the long run. Filibusters have not been what they originally were for years now. Rarely has a senator talked non-stop for days to block legislation as was done in the first 150 years of the Senate. For years now, only the threat of a filibuster was enough to stop legislation. We had filibuster-lite, a watered down, painless blocking movement.

What is being lost, and has been lost for years, is the sense of camaraderie, of principle above party, of public interest over partisan interest. The dead filibuster is just one more symptom of the disease.

All Supreme Court nominations are divisive

"A pox on both your houses," Shakespeare might say, were he around to observe the U.S. Senate's "advise and consent" duties in recent years. 

The Senate is headed toward a filibuster over the nomination of Neil Gorsuch to the Supreme Court. Democrats say they cannot in good conscience approve the nomination of such a man. The Republican leadership appears ready to eliminate the Senate's cloture rule, which has been around since the first years of the Republic, in order to get Gorsuch approved.

President Trump's nomination of Gorsuch came a year after the death of Justice Antonin Scalia, a year in which the Republican-controlled Senate refused to even hold hearings on the nomination by President Obama of moderate Judge Merrick Garland. The Republican rationale was that voters might elect a Republican to the White House in 2016, and that president might nominate someone more conservative and more to their liking. The reasoning they presented to the public was that the 2016 electorate should decide who fills that Supreme Court seat; it shouldn't be filled by the 2008 and 2012 electorate that chose President Obama or by a president who has held office for seven years. It didn't matter whether anyone accepted their thinking, the Republicans controlled the Senate and got their way.

My hope was that Hillary Clinton would win and take revenge by nominating someone far less to Republicans' liking, such as Bill Clinton or Barack Obama. (Check with William Howard Taft about the willingness of former president to accept appointment to the Supreme Court.)

(Not that I wanted Hillary Clinton to be president -- I simply wanted the GOP leadership to learn a hard-earned lesson. I thought voters might punish Republicans for obstinately blockading a qualified nominee, but I was wrong.)

What I've heard of Gorsuch's testimony before the Senate Judiciary Committee and what I've read about Merritt persuades me to believe that both men are well qualified to serve on the Supreme Court. A court with five Gorsuches and four Garlands, or five Garlands and four Gorsuches, it seems to me, would be a good, reasonable court.

Consider this: A recent poll found that more than half of Americans surveyed could name even one current Supreme Court justice. It's true that Supreme Court justices serve for decades and almost always influence events long after their sponsoring president has left office. But most voters don't know a single justice.

Judicial nominations have not always been so partisan. When Robert Bork was nominated by President Reagan, it was assumed that the old rules would apply: a qualified nominee would be approved by the Senate in deference to the president's preferences, so long as no ethical or competency issues arose. But Bork's nomination unexpectedly faced a concerted effort by Democrats and interest groups to stop him. Hence, the verb "borked," meaning to be demonized unfairly by lobbying and media campaigns, was born. Suddenly, Supreme Court nominations became national elections without a popular vote (by people who can't name a single justice).

The nomination of Clarence Thomas by George H.W. Bush took a similar path, but he eked out an appointment, 52-48, after an extremely emotional and divisive hearing.

Since then, the partisanship has extended even to federal district court nominations, prompting Democrats, who then controlled the Senate, to change the time-honored rules and stop debate on lower-court nominations, but not Supreme Court nominations. 

Now Majority Leader Mitch McConnell appears ready to use the "nuclear option" and halt debate with a simple majority vote on Supreme Court nominees. If that happens, the Republic will not fall, but this change will likely only make the nomination process more partisan and divisive.