Oliver Goodman, JHU:
The past decade, especially the last two years, have brought about an unprecedented political arms race regarding the Supreme Court. Theoretically a non-partisan body, the practice of presidents nominating conservative and liberal justices has been a prolific concept since before FDR threatened to collapse the judicial branch himself.
The technical practice of nominating and confirming justices, however, has been little more than a formality for much of American political history. If a candidate for the court did not have enough votes, they would be withdrawn; if a candidate for the court did have enough votes, he would be confirmed, despite the apocalyptic rhetoric dogmatically hurled by the minority party.
Neil Gorsuch would be the person whose placement on the supreme court would be subject to a filibuster. The only other filibuster in Supreme Court history was used to block Abe Fortas from ascending to chief Justice after a three-year stint as an associate justice.
In the broad scope of political procedure, filibustering a Supreme Court nominee would look like an unprecedented departure from the convention that has been in place for more than two centuries. In the context of modern politics, however, this gambit fits into a nexus of escalating partisanship and disregard for institutional tradition.
Even more noteworthy than the Democratic filibuster of Judge Gorsuch is the likely Republican response: deploying the “nuclear option.” This change of Senate procedure eliminates the need for a sixty-forty majority to vote on cloture and end debate on the Senate floor. In practice, this means that any party with 51 seats in the senate can override a filibuster for a supreme court nominee.
Democrats and Republicans have danced around this position for the last year and a half, since the passing of late Supreme Court Justice Anton Scalia. The Republicans held a majority in the Senate for the last two years of Barack Obama’s presidency, refusing to hold a vote, or even begin the hearing process for Judge Merrick Garland, who Obama nominated for the court last February. Although partisan ideology has been steadily expressed in every nomination for the highest court in the land, this was the first clear example of partisan ideology being unequivocally prioritized over institutional convention.
The immediate effects of this partisan struggle are relatively moderate. Gorsuch on the Supreme Court, as an individual event, is not a perversely influential force in American democracy. The precedent that his nomination and confirmation sets, along with the precedent set in a freeze of Merrick Garland’s nomination, opens new avenues for which the Supreme Court can be levied as a political tool for individual parties.
Gorsuch is on the more moderate side of options Trump had for the Supreme Court. He has relatively wide appeal however, with a qualified resume that includes Harvard Law School, a doctorate in legal philosophy from University College, Oxford, and a clerkship under Supreme Court Justices Byron White and Anthony Kennedy. His appeal and qualifications make him more palatable as the nominee for which to deploy the nuclear option on. Republicans can validate their actions by understandably pointing to Gorsuch’s qualifications and experience, claiming that the nuclear option, in this scenario, is not being used to propagate an extreme partisan agenda, but to expedite a slow bureaucratic process.
With the nuclear option already used, however, future nominations to the Supreme Court will be a free-for-all. Neither Republicans nor Democrats now have any incentive to pick moderate Justices, or compromise on their picks. This dangerously shifts the balance of power in the United States, because it is now much easier for a party that has control of the Presidency and Senate to push through Supreme Court nominees.
If there is an opening on the Court, but opposing parties have control of the Presidency and Senate, it is almost guaranteed that a Garland-like holdout will ensue, and the Supreme Court will operate below full capacity. This has thus far only happened relatively close to a presidential election, but there is no technical procedure in place to stop it from happening for a greater period of time. This will encourage Justices to step down during a time when the current administration has a chance to replace them with ideologically similar nominees, or potentially encourage justices to stay on the bench longer than they should, for fear of being replaced by a nominee who will severely change the court’s political center.
Neither of these circumstances are beneficial for the health of American democracy. The theoretically nonpartisan Supreme Court will be victim to an unprecedented level of ideological judicial activism, swept up as collateral damage in the nexus of an increasingly partisan political climate. For the time being, the Supreme Court will not be radically changed. Gorsuch replaces the conservative Scalia, and Anthony Kennedy will remain the swing vote on contentious matters. As Trump’s presidency continues, and the 2020 election, although distant, still looms, the future of the Supreme Court as a passive judicial body seems increasingly unlikely.