The nomination process for Supreme Court Justices has been in a downward spiral. Beginning with the Republican-controlled Senate’s obstruction of Merrick Garland’s nomination, partisanship has infiltrated a branch of the national government thought to be immune. Democrats in the Senate continued this trend last week with their decision to filibuster the confirmation vote for President Donald Trump’s Supreme Court justice nominee — Neil Gorsuch. In response, majority leader Mitch McConnell (R-Ky.) promised that Gorsuch would be confirmed April 7, with or without the traditional 60 votes for cloture. In accordance with his promise, McConnell invoked the “nuclear option” on Thursday, overturning the Senate’s rules, allowing a simple majority to confirm Supreme Court nominees. This dangerous new precedent politicizes the nomination process and puts Democrats in a precarious situation within the national government. The filibuster and subsequent employment of the nuclear option was an avoidable mishap that will have a lasting impact on the national government.
The nuclear option first became a concern in 2013, when Harry Reid scrapped the filibuster for all nominations to the cabinet and judiciary, with the exception of the Supreme Court. In his statement defending the change in precedent, Reid cited the broken condition of the Senate and the total lack of bipartisanship which prevented it from functioning properly. His words on party polarization hold true today. However, dismantling the historic guidelines of operation within the Senate will not yield a return to normalcy or bipartisan cooperation. On the contrary, the elimination of the 60-vote requirement for cloture will eradicate any incentive to coordinate with the minority party. The new precedent will sharpen party divides and end minority influence.
The adoption of the new precedent will likely also inflict irreparable damage on the validity of the Supreme Court. Because presidents now need only a majority of the Senate to confirm their nominees, they have the freedom to choose justices with obvious and extreme partisan leanings. With the previous precedent of 60 votes to call for a vote of confirmation, even President Trump recognized his limitations and chose a reasonably palatable nominee for Senate Democrats. Gorsuch displays relatively moderate tendencies in his rulings as a federal judge and even expressed support for the Roe v. Wade ruling during questioning by the Senate Judiciary Committee. Moreover, Justice Gorsuch is a highly qualified choice, with over than a decade on the U.S. Court of Appeals and experience clerking for Justices Byron White and Anthony Kennedy. The nuclear option enables presidents to nominate ideologically motivated justices, undermining the court’s detachment from partisan politics.
With both houses of Congress and the presidency under Republican leadership, the Democratic party stands to lose the most under the new precedent. It is highly probable that President Trump will have the opportunity to nominate more justices in the future, especially with the impending retirement of Justice Kennedy, and other aging justices. Justice Gorsuch replaced a fellow conservative, Justice Scalia, but the next nominee may instead replace a progressive voice. In this case, all three branches of the national government would be dominated by a uniform conservative ideology. If they had ceded their battle against Gorsuch, Democrats would have reduced the likelihood that the nuclear option would be resorted to in the future.
A commonly cited reason for opposing Gorsuch’s confirmation is the Republican party’s refusal to give Merrick Garland a confirmation hearing. However condemnable this tactic was, Supreme Court confirmations should not be based in revenge politics. Rather, they should be removed from partisan politics altogether. The proof of partisanship is in the division over Gorsuch’s confirmation — the Democrats executed the first partisan filibuster in the history of Supreme Court confirmation hearings in the Senate. Ideology must be disconnected from merit. In 2009, Justice Sonia Sotomayor was confirmed with 68 votes, picking up a handful of Republican votes despite her clear record of progressivism. Rather than turning to politics to determine Gorsuch’s eligibility for the court, Senate Democrats should have focused on his past experience.
Whether you agree that the filibuster of Gorsuch’s nomination was a political maneuver by the far-left or consider it a justified precaution against an unfit candidate, a cost-benefit analysis is due. Because Democrats chose to block the confirmation and Republicans followed through on Sen. McConnell’s promise to invoke the nuclear option, both parties in the Senate lost something highly valuable — a deliberate and non-partisan confirmation process for the nation’s highest court. No matter where you stand ideologically, the new precedent for Supreme Court confirmations is inherently bad. The Senate will lose any inkling of bipartisanship it retained and partisan politics will seep into the branch of checks and balances.
Charlotte Lawson is a viewpoint writer for The Cavalier Daily. She can be reached at opinion@cavalierdaily.com.
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