First published in the Lake Champlain Weekly
Written by Quentin Langley
How did we arrive at a point where judges are now effectively elected by the Senate? There were several stages to this process.
In the 1980s and 1990s Democrats in the Senate decided, en masse, to oppose the nominations of Robert Bork and Clarence Thomas. Though the Bork hearings are widely regarded, in retrospect, as a low point in the history of the US Senate, with Ted Kennedy’s speech a particular disgrace, this seems to have been a tactical choice by Democrats. The party had lost five out of six presidential elections, four of them by lop-sided margins. Meanwhile, Democrats had dominated Congress: the House for four uninterrupted decades and the Senate for all but six of those years. It suited Democrats to shift power from the executive to the legislative branch. If the Senate’s power of “advice and consent” on judicial appointments shifted from ethical safeguard to partisan election then that worked for the Democrats.
Republicans, perhaps for the same partisan reasons, were reluctant to join in. There was almost no Republican opposition to Bill Clinton’s Supreme Court nominations. By the George W Bush administration, however, Democrats were routinely opposing the President’s judicial nominations: more than half the Democrats in the Senate opposed both his nominees, and when Democrats took control of the Senate they simply blocked votes on his nominees altogether. Every Bush nominee who reached a vote on the Senate floor won, but Majority Leader, Harry Reid, refused to schedule votes and Senators, including future president Barack Obama and future Majority Leader Chuck Schumer joined filibusters.
But there remained a distinction between filibuster and the substantive vote. Only 25 Senators voted to sustain a filibuster against Samuel Alito, for example, but they were joined by another 17 in voting against his confirmation. Presumably those 17 felt that he deserved a vote on the Senate floor, even though they opposed his nomination.
Republicans began routinely opposing Democratic nominations to the judiciary when Barack Obama became President. This extended not only to votes against but also to use of the filibuster. In 2013, Majority Leader, Harry Reid, moved to abolish the filibuster for judicial appointments, excepting those to the Supreme Court. This exception seemed as though it would have no cost to Democrats, as Obama was not expected to have any more opportunities to nominate to SCOTUS. Indeed he didn’t. Although Antonin Scalia died during his presidency, Republicans controlled the Senate by this point and simply refused to schedule a vote on his nominee. In this they were following Reid’s own playbook from the last two years of the Bush administration.
So when Donald Trump nominated Neil Gorsuch to the court it was not surprising that almost all Democrats opposed him. The final nail in the filibuster was this. Democrats almost unanimously opposed breaking the filibuster too. The distinction between the filibuster and the substantive vote was now gone. (Republicans had opposed, but not filibustered, Obama’s two Supreme Court nominees).
And so Republicans abolished the filibuster for Supreme Court nominations. The more important power to filibuster legislation remains, but perhaps only until someone uses it.
Quentin Langley lives in New York and London and teaches at the University of Bedfordshire Business School. He is the author of Brandjack: How your reputation is at risk from brand pirates and what to do about it