By all traditional measures, few if any nominees to the highest court in the land are more qualified to become a justice than Neil Gorsuch. In his ten years on the 10th Circuit Court of Appeals, his opinions have almost never been overruled by the Supreme Court (the exception occurred just a couple weeks ago). He has been given the highest possible recommendation of “well qualified” by the American Bar Association (a traditionally “liberal” group).
His performance in his hearings was calm and judicious, despite continual hectoring from Democrats on the Judiciary Committee, with unreasonable demands that he rule according to their desires rather than on the law and the Constitution.
Of course the Democrats are still angry at the refusal of the Republicans last year to approve, or even give a hearing to President Obama’s pick, Merrick Garland, though they had no Constitutional obligation to do so (“advise and consent” of presidential nominees is a power of the Senate, not a duty). And they would obviously prefer a less conservative replacement for the late Antonin Scalia.
But in deciding to filibuster him, they have made clear that there is no one that President Trump could nominate of whom they would approve, unless he simply nominated a justice of their own choosing. And in that decision, despite their claims of lack of precedence, and preserving an imaginary “sixty-vote rule” for justices, it is they who are breaking with Senate tradition.
Until 1968, with the nomination of Abe Fortas, while senators often opposed the president’s picks, it had been understood that they should get an up or down vote. And the Fortas opposition was bi-partisan; Democrats and Republicans alike objected to Lyndon Johnson’s choice of his long-time confidant. This filibuster would be the first one done on largely party lines; a few vulnerable red-state Democrats have declared their opposition to the filibuster, but all Republicans want a vote, even if they don’t ultimately vote in favor.
In the wake of the filibuster threat, the Republicans have declared that if it happens, they will take what has been dubbed “the nuclear option” (though it might be better called “the Reid Rule” after the former Senate majority leader who did it for lower courts and presidential appointments) for the Supreme Court. That is, they will modify the “cloture rule” (almost exactly a century old) that originally required two thirds of the Senate to vote to end debate on a bill or a nominee. Prior to that, there had been no way to end debate, and filibusters had become almost endless, short of dropping the topic. Instead, it would require a simple majority, as Senator Reid made it for other appointments.
But there’s perhaps one option that the Republicans might consider before overturning, albeit reluctantly, a century-old tradition to counter the Democrats’ overturning of one going back to the founding of the republic.
Traditionally, a filibuster required senators to actually give speeches from the well of the Senate, spelling each other as necessary for meals and bathroom breaks, to keep the debate going. But in 1975, the (Democratic) Senate modified the cloture rule to not only reduce the supermajority from 2/3 to the current 3/5, but to end the need to actually speechify, instead simply effectively requiring 60% of the body to end debate.
Many believe (and I agree) that this has made the filibuster too easy, and in fact almost painless, other than perhaps politically. Maybe this would be a great time to fix that.
Democrats have made a lot of hay over the past eight years about “obstruction” from Republicans. The Republicans should turn the tables on them. If they want to hold up a nomination, force them to actually debate 24/7 from the well of the Senate, creating a spectacle (perhaps best known from the vintage film Mr. Smith Goes to Washington, in which the fictional senator portrayed by Jimmy Stewart holds the floor for hours, as Senator Rand Paul did a couple years ago). Force Democrat after Democrat to talk all day and all night, as the Republicans stand by, to prevent the president’s superb choice for the Supreme Court from ascending to the bench. Show the country which party is trying to move things forward, and which is really “standing athwart history, yelling stop.”
And while it’s happening, conservative PACs could continue to target the ten Democratic senators up for election in states that Donald Trump won. They only need to pick up eight of them to end the filibuster. It might be preferable to nuking it altogether, but if not, they would retain the option. It might be worth trying to preserve just a little more tradition in the chamber apocryphally intended to be the saucer into which the hot tea of the House was poured to lower its temperature