As of April 6, 2017, both the Democratic and the Republican party have utilized the most extreme tools in their arsenals in order to swing the nomination of Judge Neil Gorsuch to the Supreme Court in their favor. This week, the Democrats voted to filibuster, a tactic in which the minority party can delay an act indefinitely. In this context, Democrats were purposefully obstructing and delaying Gorsuch’s nomination. This prompted Republicans to go for their “nuclear” option, changing the senate rules, effectively disarming the filibuster.
The process, as it stood prior to the invocation of the filibuster and subsequent “nuclear” rule change, required 51 votes to confirm a Supreme Court Justice. The Democrats, who hold 44 seats in the Senate, invoked a filibuster which inflates the number of votes needed to confirm a justice to 60.
Both parties have just reached the height of short-term oriented politics. Their actions will undoubtedly damage the future legitimacy of our governances and irreversibly alter the public trust in the nomination process.
The process was ideally meant to be on the basis of merit, not politics, as Justice Ruth Bader Ginsburg showed in her confirmation. Following this partisan showdown, the court may not regain its “above politics” status.
St. Mary’s College of Maryland (SMCM) professor Todd Eberly wrote for the MarylandReporter: “Both the filibuster and the nuclear option would result in irreparable harm to the U.S. Senate.”
These events were triggered by a particular vacancy on the Supreme Court’s bench. During the 2016 presidential election, there was an added element of importance. Due to the refusal to act like grown ups by Republicans, former President Barack Obama was unable to confirm his final nominee for the Supreme Court, Merrick Garland.
Garland was picked by Obama to fill the vacancy opened after Justice Antonin Scalia’s passing away in Feb. of 2016. Garland’s appointment to the court was blocked by the Republican members of the Senate who refused to hold hearings, which is the initial step in the confirmation of a Justice. Their actions, fueled by partisan power grabbing interests, prompted a new era of obstructionist politics with the United States Supreme Court (USSC).
According to a YouGov/HuffPost poll released in 2016, 30 percent of respondents deemed “which party gets to nominate Supreme Court Justices” to be an issue of “most importance.” Those respondents are having their vote for the Republican candidate cashed in right now.
The situation at hand left Democrats with a complex strategic dilemma. Exercising their ability to filibuster Gorsuch’s nomination could energize the voter base, but there also would be long term consequences, including but not limited to the loss of the filibuster in USSC confirmations. Democrats were warned that their filibustering may cause the Republicans to change the rules, disallowing the maneuver.
Supreme Court Justices typically do not get to the stage Gorsuch has reached unless they are sure to pass. By all quantitative and historical measures, Gorsuch is qualified to be a Supreme Court Judge. He will not, however, be one that many liberals will like. His political ideology has been described as a “Natural Law Theorist.” This is a complex issue of jurisprudence, but essentially it means he will often butt heads with the ‘left’ side of the bench.
Editor-in-Chief of Vox, Ezra Klein, made the case that Democrats were right to call for a filibuster, because Gorsuch is not as center-right as Garland was center-left. Yet, this is an insane standard to expect from a conservative president who was elected on the promise of nominating a conservative judge. FiveThirtyEight’s analysis places Gorsuch in a similar place to Scalia’s on the ideological scale.
Eberly argues in his article that “filibustering a Supreme Court nominee and triggering the nuclear option should require an extraordinary circumstance of a truly unacceptable nominee.” He continued: “That’s simply not the case with the Gorsuch nomination.”
While the legitimacy of Donald Trump’s presidency is continually questioned due to his connections with Putin, I agree with Eberly that Gorsuch is not an extraordinary (uncommon) nominee, and therefore is unworthy of a filibuster.
Democrat’s choice to filibuster, alongside the Republican decision to “go nuclear” signifies a complete loss of decency and respect in our Senate for one another. The age of partisan discussion is over, and this is not a good thing. Judge Gorsuch has despicable views in my opinion, but none which make him a distinctively unqualified candidate for the position (like his nominator is).
The rule change by the Republicans makes it impossible for a senate minority to prevent the nomination of an unjust Justice. This is detrimental to the balance of powers in the American government. Both parties should be ashamed of their shortsighted actions.
Democrats were wrong to “gorbuster” and Republicans were equally as wrong to dismantle this vital check on the majority party. This check will likely never be reinstated, as it would have to be an act of charity from the party in power to their opposition. I do not foresee this happening.
Partisan politics has reached a height: no-one cares about the future. It makes me sick. Without this check on majority powers, tyranny can run rampant. Shame on the Senate.