U.S. Senate’s Nuclear Decision

The Senate Republicans’ decision to go nuclear could have lasting effects for decades but it accomplished their goal of getting Neil Gorsuch confirmed to the Supreme Court.

By Mike Brest 5/4/2017

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The United States Senate voted to confirm President Trump’s nominee, Judge Neil Gorsuch, to fill the vacancy on the Supreme Court earlier this month. The 49-year-old federal judge could play a major role in solidifying a conservative court for decades to come. His confirmation process was defined by the stark differences across party lines. The hearings were filled with questions of ethics and inquiries as to where Gorsuch stood on controversial issues.

The opening on the bench came from the sudden and unexpected passing of notoriously conservative Justice Antonin Scalia in February of 2016. With a year left in President Obama’s office, he appointed Judge Merrick Garland to the highest bench in the country. But on the day of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) publicly stated that the Republicans would not even begin the confirmation process. Garland’s nomination just withered away until it expired with the ending of the 114th Congress.

With Democrats feeling robbed of that ninth seat, they planned to filibuster whomever President Trump nominated. It became even more vital for them when such a conservative judge as Gorsuch was picked to fill the vacancy. They filibustered, but it was merely a formality because the Republicans planned to go “nuclear.” Prior to the confirmation process beginning, a potential justice would need a supermajority, or 60 of the 100 Senate votes, but all it took to lower that threshold would be a simple majority. So, the Republicans voted to reduce the number of votes to confirm a judge, and then they voted to end the filibuster to vote on Judge Gorsuch. The vote which was seemingly minor, altered 200 years over Senate history in the matter of minutes. He was confirmed with a 54-45 vote.

In approximately two hundred years of the Senate, there were hundreds of party line votes, but eliminating the ability for the minority to filibuster was not a real option until now. The divisiveness of the Senate is higher now than it has ever been. The level of partisanship, which has developed over time, made this a viable and somewhat expected decision.

During the hearing in front of the Senate Judiciary Committee, Democrats were critical of Gorsuch’s voting records, while the Republicans were more than happy to loft questions for the nominee to hit them out of the park. Democrats regularly used his previous rulings and decisions to determine how he’ll vote in the future. They asked him dozens of loaded questions to force him to pick sides on some of the most controversial topics in politics.

“I think the Senate should look at their qualifications, what they’ve written, and ask them about their view of the proper role of the president in foreign policy” former California Congressman and current vice president of the Aspen Institute Mickey Edwards said. “I think it is wrong to ask about a particular decision. I think you don’t ever want to have a justice or judge, state, federal whatever, where you try to know in advance what they would rule on a case. You don’t want judges to know how they’ll rule on a case. They have to look at each individual case on its own merits.”

Only three senators crossed party lines on this vote, while the two independents in the Senate voted against Gorsuch. The three Democrats who voted in favor of the judge were Sens. Joe Manchin (D-WV), Hiedi Heitkamp (D-ND) and Joe Donnelly (D-IN). All three Senators are up for reelection in 2018, and their seats are considered up for grabs. West Virginia, North Dakota and Indiana also all voted for Mitt Romney in 2012 and Donald Trump in 2016. So it would surprise no one if the Republican Party targeted those vacancies. Coming from red states and facing reelection in 2018, it makes sense why these Senate Democrats would go against their own party by voting in favor of Judge Gorsuch – keeping constituents happy is the best way to retain their seat in the Senate.

The three Senators who crossed the political lines to vote in favor of Gorsuch were the fewest to do so for any of the current justices on the Supreme Court. During President Obama’s time office he nominated two justices, Elena Kagan and Sonia Sotomayor. Five Republicans voted for Justice Kagan and nine voted in favor of Sotomayor. Before them, the most recent justice to be confirmed was Samuel Alito in 2006 under President Bush. Only four Democrats voted for him. But for the five justices who have served on the bench the longest, there was an average of 30 senators who voted across party lines to vote in favor of the candidate.

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This graph depicts the number of Senators who crossed party lines to vote in favor of each of the nine current Supreme Court justices. (Wikipedia was used to obtain data used in this graph)

The Republican Party’s decision to go nuclear was expected but dreaded by the members of Congress and politicians in general. Many senators publicly expressed disappointment over the current political climate that would warrant the Republicans going nuclear. The Democrats filibustered knowing full well that the Republicans could vote to lower the threshold to confirm a Supreme Court nominee and the Republicans called the Democrats’ bluff. While it’s hard to predict exactly how this will affect Congress going forward, it’s vital to explore all possible options.

The Brookings Institution is a non-profit think tank and their congressional expert Molly E. Reynolds said, “I tend to think that Senate parties are relatively short-sighted, evaluating the immediate political consequences of a given choice.”

Now that a confirmation only requires a simple majority, confirming a Supreme Court candidate suddenly became significantly easier. Theoretically if the same party controlled the Senate and White House, they would automatically be able to confirm the nominee with people voting purely by party by virtue of having the majority. It would interesting to see what would happen if the president and Senate were of opposite parties.

Reynolds added, “Going forward, I do think that the change will make it more difficult to confirm justices during divided government but it’s hard to say whether it will be impossible.”

The president at the time will be forced to nominate a very centrist judge to even have the chance of him or her being confirmed if the Senate and White House are divided. But as the Republicans did for Merrick Garland, if the Senate and White House are divided and the president nominates someone of his or her own party, they could refuse to hold hearings for the Supreme Court candidate.

Ultimately, the Republicans’ decision to go nuclear was a result of an accumulation of actions dating back decades. Decades ago there was shift in Congress and it resulted in everything becoming a partisan issue. Following party lines became more important than voting one’s conscious or voting for what someone actually believes in. The shift in partisanship for Supreme Court nominations began when President Ronald Reagan announced his nomination of Robert Bork to serve as an Associate Justice on the Supreme Court in 1987. There were serious character concerns of Bork and liberals used all of their power to keep him off the bench.

Howard Schwartz, an American University Law professor, said that the Republicans use a “no-holds barred fight on the part of partisan Republicans who had been out of power. Power became the be all end all.”

Judge Bork’s confirmation was doomed to fail, and it did just that when the Senate voted 42-58 on October 23, 1987. The Senate at the time was made up of 54 Democrats and 46 Republicans. Two Democrats voted in favor of Bork, while six Republicans voted against him. The Bork vote is one of the first step away from civil and political discourse and towards the bipartisan mudslinging atmosphere that currently bogs down this country.

“Well it’s part of an ongoing obstructionism that goes back to when Newt Gingrich came aboard back in the 1970s and 80s, the Republican Party switched really from being willing to be a party that wanted to govern and could make deals and essentially do things that were useful for the country,” Schwartz added.

More recently though, the Democrats went nuclear back in 2013 and it was the step that led to the Republicans doing the same now. At the time, President Obama was trying to get three judges confirmed onto the appellate court in Washington D.C. Obama was also trying to get his cabinet confirmed. But, the Republicans publically announced a plan to fight. So, the Dems, led by House Majority Leader Harry M. Reid (D-Nev.) voted to lower the threshold for confirming federal judicial nominees and executive office appointments from a supermajority to a simple one. They made such a drastic decision because the Democrats considered the Republicans’ actions to be unreasonable, extremely partisan, and in bad faith. Congressman Reid’s strategy though made way for current majority leader, Mitch McConnell’s (R-KY) plan that dated back to Justice Scalia’s death.

American University law professor Stephen Wermiel said, “McConnell had basically staked his entire reputation as Senate leader and Trump to some degree his reputation as president on this nomination, there was no way barring some scandal that they could allow this nomination to let it sit.”

“If they had a playbook of options that was not an option in the playbook, it just couldn’t happen. McConnell, since November, has been like a peacock strutting his feathers about how he saved the seat for a Republican president,” Wermiel added.

Fasting forwarding to the future, it will be very interesting to see how the next vacancy will play out. There are currently three justices all over the age of 75, and all of them are known for liberal rulings. With the current composition of liberals and conservative at four to four with Justice Kennedy often providing the deciding vote, should a Democrat step down, the bench could get even more right winged. Justices Ginsburg, 84, Kennedy, 80, and Breyer, 78, may be pressured to remain in their positions until the next administration, or at least until after the 2018 Senatorial elections should the Democrats win back the Senate.

The 2018 primaries could prove to be vital should another seat open on the Supreme Court. The current Senate is broken into 52 Republicans, 46 Democrats and 2 independents. In 2018 midterm elections, the Dems will have 23 seats up for reelections, the Reps will have 8 and the two independents will be fighting to maintain their positions. For the Democrats to retake the Senate they would have to have a net gain of five seats, but that could be reduced to three should the two independents retain their seats. Should the Democrats win back the majority, albeit unlikely, it could automatically prevent President Trump from nominating another justice should a seat open up.

Filibusters are a tool for the minority party in the Senate. It allows the party with fewer seats the ability to object and prevent something should they deem it necessary. Some filibusters are viewed as more necessary than others. The Senate has prided itself in the past for being one of the only government entities to provide the minority political party a legitimate preventative measure to block legislation. However, after both parties resorting to the nuclear option in the last four years, filibusters have become more limited in situations they can be utilized. But if the Senate chooses to continue down this path of gridlock and partisanship, it won’t be long before all filibusters for any Senate debate will be banned.

Source List:

Professor Howard Schwartz – in person interview on April 10

Professor Stephen Wermeil – phone interview on April 17

Molly E. Reynolds, Brookings – phone interview on April 20

Congressman Mickey Edwards, Aspen Institute – phone interview on April 24

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