The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Barring the unexpected, Senate Majority Leader Mitch McConnell (R-Ky.) on Thursday will seek to invoke cloture on the nomination of Neil Gorsuch to the U.S. Supreme Court, a majority of Senate Democrats will vote to filibuster the nomination by opposing cloture, and McConnell will seek a majority vote to reinterpret the Senate rules to preclude a nomination filibuster as then-Senate Majority Leader Harry Reid (D-Nev.) did in 2013. This will allow a vote on the nomination itself on Friday, as McConnell has promised.
How did we get here?
In my opinion, the story of judicial nominations over the past 30 years is a story of repeated, escalating retaliation. Instead of tit-for-tat, it's been (tit+X)-for-tat. At each turn, each party has escalated as much as it thought it could get away with, tearing down norms and breaking precedents over again. Put another way, senators from both parties have acted like two kids in the back seat of a car, taking turns hitting each other, with each "punching back twice as hard." After trading enough blows, how it started is almost irrelevant.
Different people trace the beginnings of this current cycle of retaliation to different points. In my view, it began in the mid-1980s, when Senate Democrats decided that they should do more to oppose President Ronald Reagan's nominees because they were too ideological—a decision that was reported in The Post at the time. I explain this and discuss what happened since in this post from 2013. Whether Senate Democrats were justified in their action is irrelevant at this point, as it's been almost all downhill since. There are no clean hands.
[interstitial_link url="https://www.washingtonpost.com/opinions/a-probably-futile-plea-for-sanity-in-the-senate/2017/04/03/01a220d8-18a8-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.787bd304d937″]A (probably futile) plea for sanity in the Senate[/interstitial_link]
2013, of course, is when Reid invoked the so-called nuclear option (a.k.a. the #ReidRule). As it happened, I wrote one post just before Reid's decision to go nuclear, and one just after, discussing the fallout. Among other things, I noted that there was no reason to expect the new rule to be limited to lower-court nominations, and that whichever party needed to eliminate the filibuster to allow a Supreme Court nomination to go through would take that step.
Assuming that McConnell has the votes to follow Reid's lead, what will the fallout be from the decision to go nuclear? There will be hard feelings and recriminations, just as there were before, but what else? One counterintuitive possibility is that it could actually help de-escalate the judicial nomination wars. I also suspect it might help increase the diversity of the Supreme Court.
For one thing, eliminating the filibuster for Supreme Court nominations will alter the calculus on who to nominate to the Supreme Court. Prospective nominees will need only 51 votes. This means that the prospect of blocking a president's nominee when the Senate is controlled by the same party would decline dramatically. It will be much harder to get 50 votes in such situations than to get 41.
If the likelihood of blocking a nominee declines, then the value of obstruction efforts will decline as well. If the value of obstruction declines, then we would expect the investment by outside groups in obstruction to decline as well (though such resources might be shifted to other things, such as influencing elections that would affect nominations). Thus, we might see less effort to, for instance, demonize candidates, dig up dirt from their pasts, or tar nominees as out of the mainstream.
If it's harder to obstruct nominees, we might also see a willingness to consider nominees with less-traditional qualifications. That is, we might see presidents willing to nominate people who have done things other than work in the executive branch and sit on the federal bench. We might also see presidents more willing to nominate people who have done cause work or expressed controversial opinions.
One common complaint about the Supreme Court is the relative lack of diversity in the experience of the current justices. All but one served as federal appellate judges, and most worked in the executive branch or as prosecutors, but there is not a single justice with real criminal defense experience.
One reason presidents might be reluctant to put forward nominees with criminal defense experience is that such nominees are easy to demonize (as was done with Judge Jane Kelly) and misrepresent. If a criminal defense attorney was good at his or her job, then that attorney will have helped some not-nice people get reduced sentences or escape conviction altogether. Such tales make explosive fodder for activist campaigns—and such campaigns are more likely to be successful when the opposition only needs 41 votes. But when a president doesn't have to reach across the aisle, there is less fear of such attacks, and more freedom to select a nominee of the president's choosing.
[interstitial_link url="https://www.washingtonpost.com/opinions/the-one-thing-these-senators-can-agree-on-theyre-about-to-do-something-very-bad/2017/04/03/3f099112-18b8-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.a3d933a23a97″]The one thing these senators can agree on: They're about to do something very bad[/interstitial_link]
Implicit in my discussion is that I don't believe a 60-vote rule really gives us "moderate" nominees. Rather it gives us nominees of a particular stripe: Folks with very traditional types of experience who have managed to avoid controversy. It further privileges judges over non-judges, executive branch officials over legislators, and prosecutors over criminal defense lawyers. Judge Merrick Garland is a fine jurist and a decent man, but I don't think we want a Court of Garlands. I welcome a system in which it will be easier to confirm the likes of Jane Kelly, Bill Pryor, Pam Karlan and Randy Barnett.
The above concerns the effect of triggering the nuclear option on nominations when the Senate and the White House are held by the same party. But what of divided government? There are two possibilities. One is a scenario in which the White House faces a choice: Pick someone from across the aisle (as President Herbert Hoover did with Benjamin Cardozo and President Dwight D. Eisenhower did with William Brennan) or pick a nominee who will twist in the wind until the next election. That's probably the most likely scenario—and the judiciary will be the worse for it.
A second, albeit less likely, possibility is an effort to reestablish norms for judicial confirmations. After the filibuster is permanently eliminated once and for all, each side will have the assurance as to the rules of the road during unified government. The question will then become whether there is any interest in clarifying the rules for divided government as well so that nominations can proceed at a more orderly pace.
The best way to set a new equilibrium, in my opinion, would be to adopt a set of rules governing nominations that generally assures all nominees get orderly consideration at all time, but to make these rules effective after the next intervening election (e.g., in 2021) so that neither party knows who gets the better end of the deal. Structured this way, Senate negotiators could focus on what serves the broader interest of a well-functioning judiciary, instead of whether one side wins or loses.
President George W. Bush outlined some potential rules for nominations in a 2002 speech. I like his proposal, insofar as it was designed to ensure each nominee gets an up-or-down vote, but I suspect it paid too little attention to senatorial prerogative—and in particular the "blue slip"—to be viable. I am no fan of the blue slip policy (the requirement that both senators from a given state approve a nominee for a judicial seat from that state before that nominee may proceed), but I recognize its value in giving senators some skin in the judicial nominations game. If further entrenchment of this Senate prerogative is necessary for any such deal, so be it. Even a deal that allows localized obstruction through blue slips would be better than a de facto freeze on judicial nominations the next time we face divided government.
I have no illusion this latter scenario will happen, but I do think such a scenario could be within reach. If Sens. Charles E. Grassley (R-Iowa) and Dianne Feinstein (D-Calif.) were to recognize that we all lose from continued obstruction, perhaps they could broker a deal laying out rules that would take effect in 2021. It's early enough that no one knows who would lose from such a deal, but what we do know is that the nation and the judiciary would win.
[NOTE: As originally posted, I wrote that the cloture vote would occur on Friday. I am informed that it will instead occur tomorrow so that a vote on the merits may be held on Friday. I have corrected the post to reflect this fact.]