Senate’s Gorsuch debate should be settled by a simple majority
Senate Democrats have once again gone into a room and convinced themselves to do something that has never been done before in the 230-year history of the Senate — to require more than 51 votes to confirm a Supreme Court nominee.
While Senate rules have always allowed senators the option to filibuster to death any presidential nomination, it has almost never happened.
The number of Cabinet members ever denied their seats by a filibuster is zero.
The number of district judges ever denied their seats by a filibuster is zero.
Until 2003, the number of circuit court judges ever denied their seats by filibuster was zero.
The number of Supreme Court justices in our country’s history who have been denied their seats by filibuster is zero, with one possible exception.
In 1968 President Lyndon B. Johnson sought to elevate Justice Abe Fortas to chief justice. Senators of both parties opposed the nomination. President Johnson, not wanting to embarrass a friend, engineered a 45-43 cloture vote, so that Fortas could save face and “stay on the Court with his head up.” The nomination was then withdrawn.
Still, including the Fortas incident, no Supreme Court justice has ever been denied his or her seat by requiring more than 51 votes. Even Clarence Thomas’ controversial nomination in 1991 was approved by a 52-48 vote.
That does not mean the Senate should rubber-stamp every nominee. Senators use our constitutional duty of advice and consent to delay and examine, sometimes causing nominations to be withdrawn even to defeat nominees by a majority vote. My nomination in 1991 as education secretary was delayed 51 days by a Democratic senator.
Still the Senate never required more than 51 votes to approve any judicial nominee until 2003 and 2004 when Democrats blocked 10 of President George W. Bush’s circuit court nominees by requiring 60-vote “cloture” votes to end debate. Republicans threatened to invoke the so-called “nuclear option” to eliminate 60-vote cloture on judicial nominations before reaching agreement to confirm five.
In 2011 and 2013, Republicans returned the favor by blocking two of President Barack Obama’s nominees for the circuit court. Democrats invoked the “nuclear option” to confirm three others and established the current 51-vote cloture for all nominees except Supreme Court nominees, which remains at 60.
Democrats point to Republicans’ refusal to allow the Senate to consider President Obama’s nomination of Merrick Garland last year, but Republicans were following the bipartisan Thurmond-Leahy rule — that judicial nominees shouldn’t be confirmed after June of an election year. Republicans extended that rule three months to March, when Garland was nominated and primaries were well underway.
This shouldn’t have surprised Democratic leader Chuck Schumer, who, in July 2007, 18 months before the end of President George W. Bush’s term, said he would block any Supreme Court nominee except in “extraordinary circumstances.” And, toward the end of President George H.W. Bush’s administration, then-Sen. Joe Biden said no Supreme Court nominee should be confirmed “once the political season is underway.”
Republicans did last year what Senate Democratic leaders said they would do in similar circumstances — give the people a voice in the selection of the next Supreme Court justice.
Some have suggested that if the Senate restores the tradition of confirming presidential nominees by majority vote, it would lead to the end of the legislative filibuster. I disagree. For 230 years the tradition of the U.S. Senate has been to treat legislative matters and nominations differently.
The filibuster of legislation is the Senate’s most famous characteristic. It has been called “democracy’s finest show, the right to talk your head off.” It was made famous by Jimmy Stewart in the movie “Mr. Smith Goes to Washington.”
The Senate has always allowed extended debate to encourage bipartisan consensus — such as with the Civil Rights Acts of the 1960s or the 2015 law to fix No Child Left Behind.
Filibuster to death legislation, yes. Filibuster to death presidential nominations, no.
The nomination of Judge Neil Gorsuch should be decided — as Supreme Court nominations have always been for 230 years — by a majority vote.