How Supreme Court Nominations Turned the Senate into a 'Bar Fight'

The filibustering of Neil Gorsuch is just the latest in a long line of power struggles that are doing real damage to the government.
April 4, 2017, 6:53pm
Photo by Mark Wilson/Getty Images

The discourse surrounding the United States Senate is often a bit ridiculous for those not energized by the thought of 21 women and 79 men disagreeing with one another. Donald Trump's nomination of Neil Gorsuch to the Supreme Court in January sparked a debate among Democrats about whether to use their power as the minority to block the conservative via a filibuster or whether they should "keep their powder dry" for a future nominee and let Gorsuch be confirmed. On Tuesday morning, with the filibuster all but guaranteed, talk had turned to the Republicans invoking the "nuclear option"—changing the Senate rules to allow Gorsuch to be confirmed by a simple majority. "Democrats Go to War Over Neil Gorsuch" the Atlantic declared last week, describing the difference between 40 nay votes and 41 nay votes.

If the military metaphors are a little much, they do at least show how aggro the Senate has become. The history of Supreme Court nominations is largely one of easy confirmations—though there have been exceptions, most prospective justices not tainted by a major scandal have tended to be confirmed. The past year has shown that's no longer the case, however, and tossing war rhetoric aside for a second, the new order doesn't bode very well for the Senate—or America.

By now, liberals and conservatives both know that the Supreme Court has the power to transform American life on issues ranging from the rights of religious groups to abortion to gun ownership; a friendly court can uphold a controversial executive order while a hostile court can derail a president's agenda. Recognizing the stakes, senators on both sides have made moves to block potential Supreme Court justices and lower court nominees that might have been unthinkable a generation ago. Democrats in recent weeks have been signaling that they'll work to be just as obstructionist as the Republicans were under Obama when it comes to these nominations, and it's not clear what, if anything, will change that dynamic.

The worst-case scenario is that we're looking at a new normal where Democrats won't vote for any Republican nominee and vice versa, meaning a party will need control of the Senate and the White House to put a new justice on the court. That obviously raises the possibility that seats won't be filled for long periods of time. When I brought this idea up to Russell Wheeler, a Supreme Court watcher at the Brookings Institution, he didn't tell me I was crazy.

"I just don't know how it gets ratcheted back," Wheeler told me. "It would take an act of statesmanship, and we haven't had much of that."

So how did we get here? For starters, along with the rest of America, the Senate has become more driven by partisanship. During the Obama years, this partisanship found a perfect vessel in Mitch McConnell, the Kansas Republican who won the job of Senate minority leader in 2006. After Democrats took control of both houses of Congress and the presidency in 2008, McConnell set about fucking their shit up, forgoing bipartisanship on major legislation like the Affordable Care Act and blocking Obama's lower court picks. After years of this, in 2013, Democrat Harry Reid, then the majority leader, used the nuclear option to push through judicial nominees, a move McConnell warned Democrats they'd regret.

Then came the Merrick Garland affair. In early 2016, Justice Antonin Scalia died. Ordinarily that would mean Barack Obama would name a replacement to the Supreme Court, but McConnell, who had become majority leader after the Republicans took the Senate in 2014, declared that he wouldn't hold hearings, much less vote on, anyone the president nominated. This was a naked exercise of power: Obama hadn't even said who the replacement justice would be, and in the end nominated Garland, a relative moderate who had been praised by some Republicans. But Garland was never even considered, much less confirmed, resulting in some split decisions by a shorthanded eight-justice Supreme Court. Of course, that unprecedented move paid off—the seat will now likely go to Gorsuch after McConnell leads his party in changing the rules.

But if the the blocking of Garland plays a role in the current fight over Gorsuch, so do the nominee's far-right views. Judging by his past rulings, it's likely that Gorsuch would rule in favor of large corporations, be sympathetic to Christian organizations that object to providing health insurance that includes contraception to their employees, and strip power away from federal agencies. That record is why he was handpicked by the conservative groups that have worked for years to push the Supreme Court to the right; Trump's promise to give those groups what they wanted in turn helped endear him to conservatives who weren't voting for him so much as they were voting for another polished right-wing voice on the high court.

"Judge Gorsuch would not have been nominated but for his political ideology and savvy," said Josh Orton, a longtime Democratic Senate aide involved in the effort to filibuster Gorsuch. "Republicans raised a generation of hybrid judge/politicians."

Orton compared the court battles to a "bar fight" and told me that "Republicans basically broke a bottle over Democrats' heads by injecting such political motivation behind nominations. It occurred over a long period of time, but Democrats were slow to accept the notion that Republicans had politicized this process completely." But under Trump, he said, that dynamic has changed: "There's this understanding and this energy behind the idea that the battle has to be fought on all fronts."

Wheeler, the Supreme Court expert, suggested that in less contentious times a deal might be reached between the two parties: Democrats don't block Gorsuch, who is replacing another conservative after all, and in exchange the Republicans promise to nominate a moderate to replace the next vacancy, likely to be on the liberal wing of the court. But that would require trust to exist between the two sides in the Senate, and it would also probably draw the wrath of outside interest groups which, Wheeler said, have "used the courts as a punching bag to raise money."

Since US senators have to worry about keeping various partisan groups happy and not looking weak, any détente on the Supreme Court likely has to come from the White House. After a famously bitter fight over the nomination of the conservative Robert Bork in the late 80s—Bork was the rare nominee to go down—presidents went out of their way to pick mostly non-controversial judges, Wheeler noted. Obama gave that a shot with the Garland selection, since Garland wasn't a liberal firebrand and was fairly old, meaning he likely wouldn't serve for too many decades (Gorsuch is not only a staunch conservative; he's also just 49). That didn't help, of course—Garland was still blocked.

Trump will probably get to name at least one more justice during his term (two justices are older than 80). If he picked someone that Democrats could vote for—a centrist who wasn't a product of the conservative movement or just someone too old to be a longtime influence—maybe some small semblance of order and norms would return to Congress's upper chamber. But does that sound like Donald Trump to you?

"A more responsible president could put this thing back on track," Wheeler said. "But I don't think Trump is that responsible."

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