The Filibuster is Dead. Long Live the Filibuster!

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Minority Leader Chuck Schumer has assembled enough members of his caucus that, should he choose to do so, the Democrats can now block the nomination of Judge Neil Gorsuch from proceeding to an up or down vote. Every indication is that the Majority Leader, Mitch McConnell, will respond with the so-called “nuclear option” to eliminate the filibuster for Supreme Court nominations so that the vote can proceed. While the legislative filibuster remains a longstanding bulwark of the rights of the minority, the judicial filibuster’s brief history is now drawing to an end.

Unlike the unprecedented judicial filibuster of a Supreme Court nomination with clear majority party support, the “nuclear option” rests on several precedents from as early as 1892 up to 2013 when the previous Majority Leader, Harry Reid, bent the rules of the Senate to their breaking point in order to abolish the filibuster for all other executive appointments by a simple majority. While this nakedly partisan power grab was an unfortunate turn of events then and is just as unfortunate now, in the words of Harry Reid, “This is the way it has to be.” The judicial filibuster has become a victim of its own success.

The Senate has many traditions, some dating back to the beginning of the Republic. In 1806, one of history’s greatest villains, Vice President Aaron Burr (yeah, that guy) pressed for a change to the Senate Rules which eliminated any procedure whatsoever for the body to bring debate to an end, and in 1837 the filibuster was used for the first time by the Whigs to delay a resolution favorable to President Andrew Jackson—and in those days, a filibuster could only delay, as members had to be physically present in order to continue, so practical considerations of sleep and bodily functions prevented a bill from being stalled indefinitely.

By the early 20th century, the demands and complexity of governing the vastly expanded bureaucratic state as well as the urgent necessity of supplying the military and enacting treaties following America’s entry into the First World War prompted the Senate (strenuously prodded by President Wilson) to adopt a new rule for cloture in 1917, which allowed a supermajority to bring debate to an end. In all that time, the filibuster had only ever been used for bills and resolutions. Most infamously in the filibuster’s long history, Southern Democrats Strom Thurmond and Robert Byrd used marathon filibusters in their futile and wrongheaded attempts to prolong institutional racism before the rules were modified in 1975 to allow Senators to filibuster without being physically present on the floor. The removal of this requirement predictably caused the number of filibusters to increase dramatically.

Meanwhile, Supreme Court justices were not subjected to public hearings until 1925, and even then, the questioning was limited to a few hours. It would be decades more until these hearings evolved into the embarrassing modern multi-day spectacle of eminent and respected jurists being lectured and scolded like misbehaving schoolchildren. In 1967, the opponents of racial equality came close mustering the necessary votes to filibuster the nomination of Thurgood Marshall, but were persuaded by President Johnson to abstain instead. Democrats later succeeded in filibustering the nomination of an appellate judge for the first time in 2003, forcing Miguel Estrada to withdraw his name from consideration. After that watershed was breached, the filibuster was used by both parties in an escalating procedural arms race which has now reached its inevitable conclusion.

The Senate has a long history of rejecting judicial nominations, dating back to the administration of President Washington, and rejected nominations were far more common in the 19th century than they are today. The judicial filibuster is just one way to reject a nominee—and a novel one at that. The party with the majority in the Senate exerts far greater influence the President’s choice of nominee, whereas the only time the filibuster has been used to block a Supreme Court nomination in the 228-year history of the Republic was the exceptional case of the promotion to Chief Justice of Abe Fortas who was tainted by scandal and broadly bipartisan opposition, so there is no data from which to draw any conclusions of its effectiveness. Besides, Senators also have other other tools to block objectionable judicial nominations. With or without the filibuster, the Senate will continue to be a necessary and appropriate check on the President’s awesome power of bestowing lifetime appointments to the judiciary.

More importantly, the acrimonious fight over the nomination of Judge Gorsuch is part of a much bigger movement to restore power to the states and to lessen the influence of the Federal Government. Republicans hold historic majorities at the state level which have not been seen since presidents still had beards, but these laboratories of democracy cannot function without a friendly Supreme Court which favors a narrower interpretation of federal power. Likewise, the legislative filibuster will continue to be a vital mechanism for smaller and more rural states to protect their interests from the tyranny of the majority.

The judicial filibuster was devised during the contentious and heated debates of the Civil Rights Era of the 1960’s and it will now go out in a blaze of glory for the first and last time. There can be no denying that the Supreme Court nomination process has become more politicized in recent years. Just ask Justice Anthony Kennedy, who is only sitting on the highest court in the land because of the vicious and mendacious attacks by the Democrats against Judge Bork. There is a certain irony that the last justice to be confirmed unanimously was the one before Justice Kennedy and whose vacant seat Judge Gorsuch has been nominated to fill. His name was Antonin Scalia.

The views expressed here are those of the author, and do not necessarily represent the views of CatholicVote.org

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About Author

Joshua Bowman joined in full communion with the Catholic Church in 2010 after many years in the spiritual wilderness. He recently moved back to his beloved native Virginia from Columbus, Ohio with his growing family and writes on religion, politics, history, and geographical curiosities.

10 Comments

  1. Political turnoff by the Congressional turmoil. I feel strongly that a SCOTUS nominee should display attributes that meet the expectations of the American public, as well as interpret the US Constitution. Not every candidate will meet that litmus test. Judge Gorsuch comes close. The political brouhaha makes this effort a complete mess. What is holding up the process? Two issues… Gorsuch’s support of Citizens United vs FEC and his apparent objection to Roe v Wade.

    A more important political debacle is the Republican Senate placing roadblocks to any and all SCOTUS nominees offered by President Obama. Judge Merrick Garland was an excellent choice for the open seat. McConnell, Grassley, Cornyn and their Republican cohorts on the Senate Judiciary Committee need to be taken to task for not even holding a hearing. Totally un-American!

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