On November 21 2013, US Senate Majority Leader Harry Reid of the Democratic Party stood on the Senate floor and said: "The American people believe Congress is broken. The American people believe the Senate is broken. And I believe they are right, it’s time to get the Senate working again.” Fed up with apparent Republican stalling over the confirmation of Obama’s nominee for Defence Secretary, Chuck Hagel, and inaction over numerous federal court and executive branch nominees, Reid pushed through a controversial change to Senate procedure known as the ‘nuclear option’.
This change removed the ability of the Senate to filibuster almost all presidential nominees by reducing the number of votes needed to confirm a nominee from 60 to 51. In essence, the requirement for a nominee to have broad bipartisan support has gone, all they need now is a simple majority. But Reid’s changes did not apply to nominees to the US Supreme Court, the filibuster was still an option.
*Was* an option, anyway. As Shakespeare tells us, “what’s past is prologue,” and Reid’s gamble to try and clear away obstructionism in the Senate helped his stewardship for all of a year. In 2014, facing a Senate midterm electoral map stacked against them, the Democrats lost nine seats and the Republican Party took over control of the Senate. Betting on the Democrats keeping their majority backfired on Reid, and a long-term staple of the Senate was sacrificed for the sake of one year of being able to confirm nominees to the National Labor Relations Board. Plus, removing the power to filibuster nominees except those to the Supreme Court set the Senate on a slippery slope that led to the events of last week.
And so, while most of the attention last week was on US action in Syria and the visit of Chinese President Xi Jinping, Washington once again went nuclear.
Last Thursday, the Senate voted entirely along party lines, 52 Republicans to 48 Democrats and allied independents, to lower the threshold required for Supreme Court nominees; from 60 to 51. This was in response to the Democrats’ decision to filibuster President Trump’s Supreme Court nominee Neil Gorsuch. Realising they didn’t have the bipartisan votes to confirm Gorsuch, the Republican Senate leadership instead decided to blow up 228 years of Senate history.
‘Gorsuch-gate’, as I’m sure absolutely no one is calling it, is pretty much a microcosm of everything that’s currently wrong with Congress. Although little of this is likely about Gorsuch himself, in fact his appointment to the Court changes its ideological balance very little.
This is actually a tale of two Supreme Court nominees, not one. Gorsuch was Trump’s nominee to fill the vacancy on the Court left by the sudden death of Antonin Scalia in February last year, but he was not the first.
Consigned to the dustbin of history, the reject, the almost-man was Barack Obama’s nominee; Merrick Garland. Little over an hour over Scalia’s death, Republican Senate leader Mitch McConnell, who is somehow possibly the most detestable man in a city that includes Steve Bannon, Clarence Thomas, Jason Chaffetz, and the owner of the Washington Redskins, made a statement that was delivered as an unprecedented rebuke to the President’s authority. No replacement until after the election. Despite the fact, of course, that Obama was in his second term, having won two Presidential Elections, and thus possessed something that could be described as a mandate.
Democrats protested, Garland’s name was put forward and not given a hearing by McConnell and Republican Senate Judiciary Committee Chairman Chuck Grassley, and so here we find ourselves, with Neil Gorsuch sworn in on Monday.
But this latest change to Senate rules could be the final nail in the coffin of that hallowed phrase; ‘bipartisanship.’ Not that that’s been seen for a long time.
Ever since the ‘Gang of Eight’ of four Republican Senators and four Democrat Senators tried and failed to pass comprehensive immigration reform in 2013, and Marco Rubio decided being popular with the Republican right was more important than trying to solve problems, ‘crossing the aisle’ has been about as perilous as trying to cross the Berlin Wall.
But it is especially pertinent in the case of nominees to the Supreme Court. The lifetime tenure of its justices, coupled with its power over numerous facets of American life; abortion, gay rights, gun rights, and even deciding the result of an election, means it’s important that its nominees should be in at least some way competent. Political cronyism has no place on the highest court in the land. But the issue with reducing the threshold from 60 votes to 51, and removing the right to filibuster, is that it opens the door to partisan or political appointments.
Nine votes might not seem like that many in a room full of 100 people, but in 2009 President Obama’s first Supreme Court nominee, Sonia Sotomayor, required nine Republicans to get over the 60 vote threshold. Removing the need for broad, bipartisan support only increases the chance that ideologically extreme candidates (see Bork, Robert), or politically motivated ones (Miers, Harriet) are put forward.
Years of Congressional gerrymandering and redistricting pretty much killed bipartisanship in the House of Representatives. Now, with so few swing districts, the only challenge an incumbent faces is during their primary campaign from a challenger running to their right or left, and so the parties in the House tend to occupy the more extreme ends of the ideological spectrum. The Senate was meant to be the rejoinder to this, the 60 vote threshold required for everything from legislation to Supreme Court nominees encouraged deal-making. But the unprecedented obstructionism that occurred during Obama’s presidency led the Senate down a slippery slope.
The row over the Gorsuch nomination proved what most of us knew already, bipartisanship in the Senate is extinct. A bipartisan Senate might have made a deal. Perhaps to have confirmed both Gorsuch and Garland, and had a veteran liberal justice like Ruth Bader Ginsberg retire, thereby keeping the ideological balance of the court intact, and leaving both sides satisfied. But that brand of politics is dead in Washington. Let’s see what happens next.