The nomination of Judge Neil Gorsuch to the Supreme Court has displayed how partisan politics influence political strategies. Senate Democrats have promised to obstruct Gorsuch, who most likely will not reach the 60-vote margin needed to overcome a filibuster. That strategy has forced Senate Republicans to threaten the nuclear option, amending long-standing Senate rules requiring a 60-vote supermajority to a 51-vote simple majority when appointing Supreme Court nominees.
Will Senate Democrats succeed in filibustering the confirmation of President Donald Trump’s Supreme Court justice nominee, Neil Gorsuch? Will the Republicans change the rules and invoke the nuclear option? It turns out that how the Democrats feel about these two options depends on who is in power and who stands to be disadvantaged by the decisions.
On “Meet the Press” this past weekend, outspoken Senate Minority Leader Chuck Schumer (D–N.Y.) argued that President Trump should gather with Senate Democrats and Republicans to “try to come up with a mainstream nominee.” Schumer asserted that the rules should not be changed by Republicans in order to obtain cloture (the limitation of legislative debate by calling for a vote). Furthermore, he is critical of invocation of the so-called nuclear option.
It appears, however, as if Schumer has a very short memory regarding “rule changes.” His former colleague, then-Senate Majority Leader Harry Reid (D–Nev.), invoked the nuclear option in 2013 — so it would take only a bare majority of senators to confirm all nominees except Supreme Court picks. Angered by Reid’s partisan and damaging ploy, the Republicans warned that the Democrats would potentially suffer the consequences of the rules change were the Senate majority ever to flip.
Well, that day has arrived.
As a New York state resident and politically curious citizen, I would greatly benefit from Mr. Schumer explaining exactly what the qualifications are for a “mainstream nominee.” Anyone who took the time to carefully watch the confirmation hearings, listen to Gorsuch’s responses and appreciate his perspective about the role of the judiciary would have learned that he believes that judges do not make laws or policy. Equally as important, he understands that judges do not factor their personal opinions or beliefs into their decisions. Rather, they uphold precedent and follow the law.
A profound respect and admiration for impartiality sounds pretty mainstream to me. In fact, when politics are taken out of the discussion, I believe that Gorsuch’s qualifications, record and reputation are beyond reproach. However, those trying to make logical sense of this objection are operating under the assumption that Schumer is actually open to consensus-building. The sad reality is that he is not.
Recall that in January, Schumer told MSNBC’s Rachel Maddow that it was difficult for him to imagine any “nominee that Donald Trump would choose that would get Republican support that we could support.” His promise to do his best at keeping the seat vacant for the entirety of Trump’s presidency is not only hypocritical but also undemocratic.
Let’s not be hoodwinked by Schumer — a senator whose obstructionism is no more than a reaction to a lingering aftertaste of Mitch McConnell refusing to consider Obama’s nomination of Merrick Garland after Antonin Scalia’s passing. On “Meet the Press,” McConnell referred to the “Biden Rule” as justification — acknowledging that neither side would have expected any different a decision had the shoe been on the other foot. It is crucial to recall that in 1992 when George H.W. Bush was president and Biden was chairman of the Senate Judiciary Committee, Biden established that Supreme Court vacancies should not be filled in the midst of a presidential election.
In deference to the fact that Trump won the election, and has offered his nominee for consideration, Mitch McConnell has argued, “The Senate should respect the result of the election and treat this newly elected president’s nominee in the same way the nominees of other newly elected presidents have been treated.” He also has pointed out two examples in which up-or-down votes were given under Democratic presidents: Ginsburg and Breyer under Clinton and Sotomayor and Kagan under Obama.
Certainly, recent history provides precedent for an up-or-down vote and no filibuster.
Some Democrats, such as Sen. Joe Manchin (D–W.Va.), have recognized that the left’s intransigence threatens the institution of the Senate as we know it. Yet, despite this sensibility, other Democrats appear to be consistently inconsistent. Schumer feels quite entitled to filibuster Gorsuch’s confirmation, effectively allowing a minority vote of 41 to prevent cloture — hardly an up-or-down vote when a minority can block a confirmation. And Schumer argues that invoking the nuclear option would be wrong today, even though Harry Reid felt it was warranted in 2013.
As to the justification for a filibuster and the imperative for changing the rules (i.e., invoking the nuclear option) Schumer’s own Senate colleague Elizabeth Warren felt very differently than Schumer about both in 2013. From a floor speech on Nov. 13, 2013, she criticized filibusters and called for a rules change: “We need to call out these filibusters for what they are — naked attempts to nullify the results of the last presidential election … we have a responsibility to protect and defend our democracy, and that includes protecting the neutrality of our courts and preserving the constitutional power of the president to nominate highly qualified people to court vacancies.”
Sens. Schumer and Warren must realize that “biting off their nose to spite their face” accomplishes nothing productive. If the nuclear option takes place, the Senate may very well approve even more conservative judges during Trump’s administration with only a majority requirement.
One thing is for certain: The Republicans are fully aware that the filibuster is merely a naked attempt to nullify the results of the last presidential election. And the aftertaste of the nuclear option will be worse than not considering Merrick Garland.
Nicholas Tomaino can be reached at email@example.com.