How the End of the Filibuster Undermines the Supreme Court’s Claim to Political Independence

It was only a matter of time before America’s ideological identity crisis took root in its highest court.
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It was only a matter of time before America’s ideological identity crisis took root in its highest court.
U.S. Senate Majority Leader Mitch McConnell. (Photo: Alex Wong/Getty Images)

U.S. Senate Majority Leader Mitch McConnell. (Photo: Alex Wong/Getty Images)

After years of gridlock and partisan pressure, the United States Senate seems to have finally cracked.

On Thursday, Republican lawmakers voted to rewrite the Senate’s rule for confirming the president’s nominees to the Supreme Court, clearing the way for Judge Neil Gorsuch, President Donald Trump’s pick to fill the seat left vacant since the death of Justice Antonin Scalia, to ascend to the high court. The move came after Senate Democrats, many still furious over Republicans’ unwillingness to consider Judge Merrick Garland during the twilight months of Barack Obama’s presidency, filibustered the Gorsuch nomination.

“We will sadly point to today as a turning point in the history of the Senate and the Supreme Court,” Senate Minority Leader Chuck Schumer told the Associated Press.

Schumer’s not wrong. The year-long vacancy of Scalia’s seat has left the Supreme Court hobbled and dysfunctional, punting on constitutional questions resolved by lower court decisions and, in some senses, abdicating its jurisprudential duty to define the law of the land.

But the reprogramming of Senate procedure to achieve the goal of ramming through a nominee has left both the Senate and Supreme Court even more vulnerable than before. By embracing the “nuclear option”— rewriting the rules of the Senate to require only a simple majority for confirmations — Republican lawmakers “are fundamentally altering the way the Senate handles one of its most significant duties — a sign of the body’s creeping rancor in recent years after decades of at least relative bipartisanship on Supreme Court matters,” the New York Times reports. With the bar for confirmation lowered, the party in power will have an easier time putting its ideological zealots of choice on the court without the need to build a legislative coalition.

“It’s going to be far easier to confirm nominees when there’s a president and senate of the same party,” says Rick Hasen, a professor of at the University of California–Irvine. “It also means that the nominees might be of somewhat different character, as it’s no longer necessary to have to try to please members from the other side. So they might be more extreme candidates, candidates without the traditional background that we’ve seen in the past.”

To be fair, this political calculus was lurking in the Senate before Republicans swept the 2016 election cycle. In 2013, Democrats, exasperated by House Republicans’ obstruction of Obama’s nominations, pushed through their own rules change designed to enable the confirmations of lower-court and executive branch nominees with a simple majority.

But, as the Washington Postpoints out, Democrats kept their hands off the Supreme Court process, concerned that the bench remain removed from the partisan tensions enveloping Congress. The Supreme Court, they believed, should remain sacrosanct — and so should the process of appointing the jurists to shape it.

No matter who wins in Congress, the Supreme Court loses.

But by filibustering Gorsuch and triggering the Republican nuclear option, Senate Democrats wasted their one chance at throwing the brakes on a nomination that, in the end, won’t change the ideological make-up of the court all that much. And that means Democrats may be forced to reckon with more conservative nominees without being able to resort to the filibuster.

“The argument is that Democrats had one shot to make noise about this and they should have waited until it made a major difference,” Hasen says. “Right now, the replacement of Scalia with Gorsuch puts the court back to where it was ideologically. But if Ginsburg or Kennedy or Breyer leaves, the court will move much further to the right.”

What’s more, Republicans are now happy to wave the filibuster in Democrats’ face during the former’s newfound legislative opposition, leaving it to the new minority party, once outraged by Senate Majority Leader Mitch McConnell’s obstructionist agenda, to cede their own claim to any moral high-ground in the public debate over legislative inaction. Besides, it fits a narrative of Democratic interference going back to the Senate’s infamous vanquishing of President Ronald Reagan’s Supreme Court nominee, Judge Robert Bork, back in 1987.

“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet,” McConnell told the New York Times — a deeply ironic statement given the GOP’s history of interference during the Obama years. “And it cannot and it will not stand. There cannot be two sets of standards: one for the nominees of the Democratic president and another for the nominee of a Republican president.”

No matter who wins in Congress, the Supreme Court loses. Increasingly partisan nomination fights will yield increasingly more partisan justices — or, at least, diminish the public’s faith in the high court as an institution relatively insulated from the warfare of daily politics.

“Right now, all the conservatives on the court were appointed by Republicans, and all the liberals by Democrats, which is not the pattern we’ve had in the past,” Hasen says. “There may be further escalation of partisan bickering in the court itself, and this may affect the nature of the legislative filibuster too.”

“It’s hard to know how much the public’s opinion of the court or government institutions is driven by particular factors,” he adds, “but I can’t see it helping the court’s legitimacy with additional partisanship there.” But given the spread of political polarization throughout the legislative branch, it was only a matter of time before the tendrils of America’s ideological identity crisis took root in the highest court in the land.

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