The Kabuki theatre that is a Senate confirmation of a Supreme Court Justice is approaching opening night. The principal actors have exchanged scripts but they already know their lines well, having played both parts before. Some bitterness remains from the last production which closed out of town when one set of actors refused to go on stage.
A change in this year’s show is the ingénue impresario who is given to ad-libbing. President Trump has followed the script, however, to the extent of nominating Neil Gorsuch, an Ivy League trained Federal Circuit Judge who has written widely and well but on nothing more controversial than not requiring the Little Sisters of the Poor to supply birth control to their employees.
On the subject of religion Judge Gorsuch, a white male Protestant, would join a court that for the first 150 years of its existence consisted almost entirely of white male Protestants, although for the last 20 years its members have been comprised entirely of Catholics and Jews. There have been no Atheists or gays on the Court, at least none that are known.
Judge Gorsuch’s writing style is widely admired. It is most unjudicially clear and occasionally witty although without the edge that Justice Scalia could not resist. His opinions are generally conservative although they lack the reflexive deference to the police that some conservatives require. The script requires the nomination’s opponents to describe the judge’s opinions as “out of the mainstream”
There are some variables in the script depending on the time left in the President’s term, the age of the nominee and whether he or she represents a change in the philosophical balance of the Court. A principal variation in the plot depends on whether the President’s party holds a majority or minority in the Senate.
Where, as currently, the President’s party is in control, a common plot device in these dramas is the filibuster which permits opponents to kill a Supreme Court nomination or other measure by talking about it interminably so that it cannot come up for a vote. A filibuster can be terminated only by a super-majority of 3/5 of those present, usually 60 votes.
Why would a majority party enacting rules at the beginning of a session not simply provide for debate to be closed by a majority vote? Senators are elected for six year terms and, more often than not, for multiple terms. Taking a long view, it is easy for Senators in the majority to imagine themselves being in the minority. The Senate Club is just a prudent recognition that giving rights and power to the minority may ultimately benefit members of the current majority.
The principal concern of the Senate Club is the convenience of its members. Filibusters once meant long speeches by a senator or group of senators, exemplified by Jimmy Stewart’s character in “Mr. Smith Goes To Washington.” The stereotypical filibuster was the longest one ever in 1957 by Southern Senators against a Civil Rights bill. To keep the filibuster going the Southern Senators had to keep enough senators present to defeat a cloture vote. The majority had to maintain 51 senators present to provide a quorum, as in the absence of a quorum the Senate would adjourn and the filibusterers would get a break. Cots were brought in for senators to sleep during the round the clock session.
Such filibusters are rarely seen these days. While Senators may be barely civil to each other, none want to interfere with the main work of a Senator – endless rounds of fundraising events and meetings with special interest groups that would temporarily be derailed by an actual filibuster. Instead the current practice is for a group of Senators to announce a filibuster. The matter at issue then will not be brought forward until the majority has enough votes to defeat a filibuster. Thus no Senator is actually inconvenienced.
In 2013 Democratic Senate Majority Harry Reid eliminated the use of the filibuster in executive appointments and judicial appointments, other than the Supreme Court, with a rule change by vote of 52-48 with all Republicans and three Democrats voting against. The move was a shortsighted response to the Republicans blocking President Obama’s attempt to appoint several judges to the D.C. Circuit Court of Appeals. Republicans claimed the Court was overstaffed but more likely they were miffed that Democrats had blocked President Bush’s efforts to fill those spots. An unappealing aspect to this repeated drama is the childish cry “He did it first!”
The filibuster has not actually been used against a Supreme Court nomination since 1968 when Republicans filibustered the nomination of Associate Justice Abe Fortas to be Chief Justice. Since then it has been utilized only as a threat.
In the absence of a bombshell at his confirmation hearing, a Democratic filibuster in opposition to the Gorsuch nomination will be difficult to mount. Ten Democratic Senators are up for reelection in 2018 in states which were carried by President Trump.
Republican Majority Leader McConnell and most conservatives loathe the idea of a rule change eliminating the filibuster for Supreme Court nominations. They would be fools not to do it, if necessary, though. The Democrats, by eliminating it for other judicial nominations, have already made plain that they would do the same for Supreme Court nominations, if the need arises in the future.
The filibuster could function only when both parties abided by it when they have control in the Senate and trusted that the other will do the same.
Talk of the filibuster blocking Justice Gorsuch is no more than its death rattle.