Senate

Senate Nukes Filibuster for Supreme Court Picks

Neil Gorsuch confirmation vote expected Friday.

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Kyodo/Newscom

With Democrats promising to use the filibuster to block the nomination of Judge Neil Gorsuch to the Supreme Court, Senate Republicans on Thursday afternoon triggered the so-called "nuclear option" and abolished the upper chamber's 60-vote threshold for appointments to the high court.

It took a series of parliamentary maneuvers, but the end result is the establishment of a new precedent allowing future Supreme Court nominees to be confirmed by the Senate with a simple majority vote (as has been the case for all other federal court appointments since the Democrats similarly changed the rules in 2013).

The final vote on the rule change was 52-48, along party lines. The vote does not confirm Gorsuch, but clears the way for an expected confirmation vote Friday.

Brinkmanship over the Senate's filibuster for presidential court picks has been as much about assigning blame than anything else. Republicans say Democrats lit the fuse for the nuclear option in 2013, when then-Majority Leader Harry Reid (D-Nevada) changed the rules to block a Republican filibuster of some of President Barack Obama's federal court nominees. Democrats blame Republicans for refusing to give Obama's Supreme Court nominee, Merrick Garland, a hearing or a vote last year and forcing Gorsuch through without getting the requisite 60 votes to avoid a filibuster. Both sides will surely try to raise money and make campaign ads out of Thursday's vote.

That 60-vote threshold has always been something of an illusion, since any majority coalition of senators could have abolished it at any time. The filibuster is a great protection against majoritarianism, but it has survived this long—ironically—because no majority ever decided to kill it and no minority was ever foolish enough to goad the majority into doing so. (Fans of the filibuster will be happy to know there seemingly is little appetite for eroding its use in legislative matters, as Dave Weigel reports)

Democrats very well may wish that they still had the filibuster at their disposal when the next Supreme Court nominee comes before them. With Trump in office for the next four years and a difficult electoral map facing them in 2018, they may be in the minority for some time, and Trump's next appointee may not be as agreeable as Gorsuch.

For that matter, it's not hard to imagine a future moment when Republicans, too, will look back at today and wonder why they disposed of the filibuster. A future, progressive president with a liberal majority in Congress will be able to push judicial nominees that stretch the Supreme Court far beyond its traditional middle-of-the-road political views.

And that's the only thing we can say with any certainty about today's vote: that it will drive our politics further to the edges of the mainstream. Whether that is for good or for ill depends on your individual point of view, but the truth is that both sides will now be able to approve lifetime nominees to the Supreme Court based on the outcome of the most recent election cycle, rather than having to find consensus candidates that could win support across the Senate's center aisle. The consequences of triggering the nuclear option, I think, will not be fully known for a long time.

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  1. Is there a list of all Supreme Court nominees who were blocked by filibuster?

    I can’t recall any, and certainly a number have been approved with fewer than 60 votes.

    1. Abe Fortas, I believe, and he was already an associate justice being nominated for chief justice. Or something like that.

      1. And the filibuster was bipartisan. There was some kind of controversy about him but I do not recall the details.

        1. He ended up resigning shortly after over some pretty serious ethics issues although I’m not sure if the 2 were related.

    2. Democrats tried to filibuster Alito, but it didn’t go anywhere.

    3. Since JFK, only Thomas and Alito have been approved with fewer than 60 votes (I believe)

      1. And yet they weren’t filibustered.

    4. There aren’t any.

      The Fortas situation was a move to Chief Justice, not a nomination.

      What is lost to the mists of time are all the articles expressing shock when Democrats first started filibustering judicial nominees to keep GWB from appointing judges because he was ‘selected not elected’.

      Democrats started this crap with Bork, continued it to Thomas, went insane when W was in office, used the ‘nucular’ option to get their way under Obama and have had their weapon confiscated and destroyed under Trump.

      And good riddance.

  2. Is there a list of all Supreme Court nominees who were blocked by filibuster?

    I don’t recall any, and certainly a number of nominees have been approved by fewer than 60 votes.

    1. This filibuster rule prevented the item from actually being voted on to begin with, not the vote itself. Except for a few things set up in the Constitution itself, the actual vote is still by simple majority. The only things for which the filibuster has been ended on, at this point, is judicial nominations.

      1. That doesn’t answer my question. I know how filibusters work and what filibusters were ended.

        How many Supreme Court nominees were filibustered? Is the answer 1, some guy I never heard of blocked by a bipartisan filibuster?

        If so, today’s action is all on the Democrats.

        1. “If so, today’s action is all on the Democrats.”

          Of course it is. The only people blaming the Republicans here are blind partisan hacks. Sotomayor and Kagan were extreme partisan picks and the Stupid Party supported them anyway out of respect for their qualification and traditional deference to the POTUS’s selection. The Evil Party has no such hesitations.

          1. Ruth Bader Fucking Ginsburg was confirmed 96-3. Pretty sure it wasn’t on a party-line vote.

  3. The Democrats sure have been painting themselves into a corner over the past few years, relying on an electoral reality that seemed (falsely, it turned out) to demographically lock the GOP out of the White House for the foreseeable future. They’ve screwed themselves out of legislative majorities and governor’s mansions in so many states that their bench at the national level isn’t very deep. This latest maneuver really seems to be a shortsighted endeavor aimed at driving campaign donations.

    The Ginsburglar isn’t going to live forever.

    1. Yeah, this whole extended process seems to be an exercise in soliciting donations while the Democratic base is still hissy-fitting over the election. Strike while the progressives are hot under the collar.

      While they aren’t building their candidate bench, they are building their war chest.

      1. I still think some of the games being played by the Democrat party are an effort to keep their base from realizing that;

        A) While somebody may have hacked some Democrat email accounts and leaked them (admittedly from a,russian server, if I have the facts straight), there seems to be very little evidence that Trump was involved.

        B) The ‘Hacked the election’ meme is fundamentally dishonest, because it implies that somebody interfered directly with the vote.

        C) Of anybody can be said to have hacked any part of the election, it is the Democrat establishment. Whether they changed the outcome of the primaries or not, there is clear evidence they intended to.

        D) In forcing or trying to force the nomination of Hillary Clinton, the Democrat establshment showed that they have no respect for their base, and also picked a loser.

        IF the Democrat establishment can keep their base baying after nebulous Trump scandals, they probably think they can gin up enough enthusiasm to dump Trump in 2020, weak bench or not.

        I think they’re devoting too much political capitol to a pipe dream. I suspect that unless Trump fails repeatedly and spectacularly, enough Republicans who stayed home in 2016 will vote for Trump in 2020 to offset a lot of Democrats who stayed home in 2016 because Hillary was an awful candidate.

        We’ll see.

    2. I would put money that she will croak during Trump’s 1st term. Breyer is 78 years old, going on 79. Kennedy needs to retire soon to allow Trump to replace him.

      The left would shit its collective pants if the Ginsburglar and Breyer-icecream openings gave conservatives 2 more seats on the SCOTUS.

      1. Yup. They should have let this one pass and saved their filibuster for a nominee that really deserved it.

        1. My thought exactly. The Dems outsmarted themselves.

          1. I’d give Republicans partial blame for letting Democrats get their hardcore leftists onto the court like that. It just encouraged them to get their hopes for social justice revolutions yet higher. And when they had this prospect so tantalizingly close then snatched from their fingers, they became predictably obstinate. Democrats in liberal districts/states probably couldn’t vote across party lines if they wanted to.

            Also there’s the whole Trump factor of course. Nothing the man does will be met with anything short of obstinate from liberal voters. No matter how moderate.

          2. Short term, you are right. Medium term, you are wrong. Long term, you are probably wrong. By acting racist (anti-black, anti-hispanic, and to a lesser extent anti-asian) the republican party is limiting its membership almost exclusively to whites. The white conservative majority is dying off at a steady, and possibly increasing rate. The latter is due to drug abuse and suicide. (google ‘white mortality on the rise’, and ‘white minority in America’. Between these two factors, the conservative Republican party may begin loosing elections as early as 2020. Even after the Republican party begins moving away from racism, real or perceived, and adopt minorities and minority issues, a rebuilding process could take decades. Democrats will have plenty of opportunities to shift the country to the left during those (possibly many) decades the Republicans are learning to deal with minorities.

        2. I would assume that would simply kick this particular can down the road until then anyway.

    3. The left wing meltdown when Ginsburg croaks is going to be epic, especially if the GOP has already convinced Kennedy and Thomas to retire. Staring a 6-3 conservative majority for 25-30 years would have to be a tough pill to swallow…

      1. Kennedy is not going to retire as the request of a political party.

        I doubt Thomas would either. Unless maybe he got to pick his successor? 🙂

        The Dem bench has been depleted for a long time. How else do you explain Obama winning the primary?

        1. How else do you explain Clinton winning the primary?

    4. A year ago everyone was musing about the end of the GOP. Today it’s team blue. The lure of free shit is eternal. They will be just fine.

      1. So much this…..^^^^and lots of new people have begun to get it the last eight years. That genie has left the bottle.

      2. Oh, Team Blue isn’t dead, but I do think they need some candidate they can brand as an ‘Outsider’, and I don’t think their panjandrum want to hear it. Maybe they’ll wise up before 2020, though. It’s early days yet.

  4. I wish they’d just go back to the old-fashioned speaking filibuster which ground everything to a halt. I can understand the real-politik urge to convert it to the current filibuster-in-name-only which only blocks the one specific issue, but it was a short-sighted gain.

    The “world’s most deliberative body” was always a laugh, but it became mockery when they gutted the speaking filibuster, and now it’s just sad.

    1. Agreed. That was the whole lie about the matter. The ‘filibuster’ ceased to be an actual filibuster – ie. requiring constant floor presence therefore suspending all other Senate business – quite some time ago.

      At this pointy they might as well get rid of the fig leaf for legislation as well. But, right now if they did that then the GOP would have no possible excuse for not repealing Obamacare.

    2. There is more than one process called a filibuster. In general, a filibuster is any action that prevents or delays a floor vote on a given item. The speaking filibuster is still alive and well (at least as long as someone’s voice and brain holds out) in it’s place. Even the procedural filibuster is still in place for everything but court nominees. Reid killed it for lower court nominees and now McConnell has gotten rid of it for Supreme Court nominees.

  5. Gorsuch will regret this whole thing once he realizes that rookie justices are hazed by having to rub Ruth Bader Ginsburg’s feet.

  6. Next time you get too impatient and decide to murder a sitting justice in cold blood and leave a fucking pillow lying on top of his head, better make sure you have a majority in the senate when you it, assholes.

    1. All joking aside, Mike, you may actually be pretty seriously mentally ill.

      1. Looks like he thought he was commenting on the InfoWars article about this.

      2. But that was indeed a hilarious observation. A+

    2. Wew lad

    3. When someone mentioned this in another article, I kinda thought they might be joking a little. But here it is.

      When I said your stupidity was breathtaking, I meant literally breathtaking. Your idiotic thoughts are so vacuous that they literally take the breath out of a person for a few moments. It’s like being hit in the guy with a hammer of stupid.

      1. “Hammer of stupid” was my nickname in college.

        I didn’t like them smart, people.

      2. It’s a common conspiracy theory. The fact that they didn’t do an autopsy and there were strange timeline issues in the reports about his death just add fuel to the fire.

        While it’s best to not invest too much in these theories, its a lot less crazy that what some people believe.

        1. It is entirely within the capabilities of the FSB or PBS.

    4. It’s not bad advice, though.

    5. Jet fuel can’t melt Scalia’ pillow!

      Oh well, I tried.

  7. I’m annoyed that this episode has made me consider possible virtues of the filibuster (requiring a large consensus for important things like SC nominations), which I am on record being against entirely as an undemocratic nonconstitutional means for minority rule in the senate.

    Still this was all inevitable and nobody miscalculated anything. The Republicans will get Gorsuch and whomever follows him regardless, and the only question would have been whether they kill the filibuster now or later. So Dems didn’t have much of a hand to play, but at least they got to make Repubs look like assholes twice in a row after their shameless treatment of Garland.

    And Gorsuch, measured by some as to the right of Alito and Thomas, is no “good” alternative to some other guy from Dems’ perspective. Trump’s next pick will be from the Federalist Society list same as this one, though it would be entertaining if he thought the end of the filibuster meant he could nominate Ted Nugent or whomever.

    1. The Democrsts had already killed the filibuster for all other judicial nominations so this just ends a wierd outlier.

      Furthermore, the Democrsts are currently espousing a results oriented judicial philosophy which is a cirruoting influence on the courts and the rule of law. Obama deserved to be denied the pick because of this malevolent influence on the highest court that his party favors.

      1. Yeah, when conservative justices change the law, they’re just doing what Jeebus and James Madison wanted. At least you’ve almost articulated the real McConnell rule: only Republicans get to appoint judges.

        1. huh….I didn’t know Republicans appointed Sotomayer and Kagan. I must have missed that.

          I guess that would explain why they both enjoyed solid aisle crossing from the Republicans, with 68 and 63 votes respectively.

        2. Conservative justic3ez do not think they have the authority to rewrite law as an essential part of their judicial philosophy. Democrats do.

          1. They do, they just lie through their asses about it.

    2. He could nominate Ted Nugent right now. There’s nothing that requires a Supreme Court justice to actually be a lawyer.

      1. There was a fanciful idea going around that the filibuster is what prevented him from choosing a real nut like Ted Cruz.

        I’m pretty certain that he’s outsourced his judgment on this matter to radical rightwing think tanks, so we get nuts with decent haircuts.

        1. you’re calling Gorsuch a “nut”?

          huh…that right there tells everything we need to know about your level of rational thought.

          1. Its TDS. The left’s mental psychosis is not even being hidden anymore.

            They will say whatever they think will help garner an emotional response to their socialist World collapsing around them.

            I seriously disagree with Kagan’s politics and pretty much 100% of what she says in SCOTUS decisions, but she is not a nut.

          2. Yes, but I’ve read about him and didn’t merely judge him by his accent and clothing.

        2. Actually, I think Ted Cruz was supposed to be the “safe” play because senators aren’t supposed to block each other.

          But many senators don’t like TC. Which seems like an obvious point in his favor.

          1. I think Cruz would be nearly as excellent of a choice as Bork was in his time, at least from the perspective of making the Wise Latino and Kagan’s head’s explode when hearing him destroy their silly arguments.

    3. Even though she’s too old and too libertarian/unpredictable, I would find it hilariously wonderful if Trump nominated Janice Rogers Brown to replace whomever dies/retires next. Watching the Dems deny a black woman a seat on the court would be spectacular to watch.

      1. One day you may figure out that we liberals aren’t as obsessed with race as you guys are.

        1. Haha, right. It’s not like you support outright racial discrimination by the state or anything.

          1. Haha our presidential nominees don’t run on a platform of kicking out all the Mexicans.

            1. “Mexican” isn’t a race, you racist.

              1. It is to Trumptards.

            2. So your point is what then? Donald Trump being racist against Mexicans makes you not racist against white people and Asians?

              1. Everyone’s a little bit racist. Some are a lot racist. They voted for Trump.

            3. “”Haha our presidential nominees don’t run on a platform of kicking out all the Mexicans.””

              And neither did Trump.

              Trump never said anything about kicking out ALL Mexicans. Just ones that broke the law to get here. He’s not anti-immigration, he’s expects them to follow the law. Liberals have a hard time understanding the difference, yet call others stupid.

              1. Just 11 million of them and putting up a wall behind them.

                And it was totally about jerbs and crime, definitely.

                1. Are we talking about those Trump policies that won him all those blue-collar democratic votes? That proves the other party is more racist?

        2. Really? So it’s not true that Dems didn’t want Miguel Estrada on the court because they couldn’t allow Repubs to be the first to get a latino on the court?

      2. She would be great! She will deal with the wise latinas and living-breathing goofs on the court.

    4. IOW, democracy is only legitimate when it agrees with you

  8. Any ‘Republican’ candidate for the SJ nominated by Trump would have been subject to the Dem’s crybaby antics: Waa, waa, waa, my seat has been stolen…

  9. OMG the Senate changed their rules to be majority vote! That’s outrageous! Atrocious! The end of the Republic!

    Or not.

  10. You are assuming the President and Congress will always be controlled by the same party.

    I’d like to see an amendment restricting any President from appointing more than one SCOTUS Justice in a four-year term. Justices could be appointed temporarily if more than one is needed, but this is rare.

    1. I’d like to see the Senate fulfill its traditional role of provided a slate of nominees to the POTUS for final selection.

  11. so what. some people worry that if the president is not the same party as the senate majority the presidents choice will never get through. well that may be true but it also happened several times when Bush was president. When a group is allowed to make their own rules like the Senate then all this fighting about silly rules are just theater for the masses of idiots.

  12. This is going to be Trump’s lasting legacy, being at least two conservative justices on the USSC and giving it a majority for years to come. The Democrats have just written themselves out of the process. Trump himself may be crazy and unsuited to the office, and anything else he does may be reversed.

    The other legacy of course being that he kept a progressive, mendacious, self-serving, power hungry, immoral and unethical witch out of the white house.

    For that I have to appreciate him in spite of his many failings. It’s not that I like Republicans, but I just detest Democrats, particularly of the progressive stripe.

    1. “I mean, Trump may be mendacious, self-serving, power hungry, immoral, and unethical–but he’s not a witch!”

      1. Presidents are meant to grab pussies, not have them.

        1. Hillary did not have a pussy, she had a snuke.

          1. but she does grab pussies

            1. Now Bill Clinton, there’s a pussy grabber.

      2. Hmmm…someone go and find us a goose…

    2. “Trump himself may be crazy and unsuited to the office, and anything else he does may be reversed”

      and yet he picked a great SCOTUS nominee, a number of excellent cabinet picks, and is following through on the widely lauded promises to reduce regulation and governmental excess.

      What exactly has he done that is crazy and unsuited to the office?

      1. He has unprecedentedly bad poll numbers and has failed at literally everything he’s tried so far. The entire world, which was just getting around to some measure of respect for this country again, thinks we’re a dangerous joke.

        But yeah he’ll a rightwing fuckhole on the SC. That’s all Mitch McConnell cares about, after all. Let’s just ignore the incompetence, corruption, and treason, because, hey, Republicans are in power! That means it’s time for a vacation from principles!

        1. “Bad poll numbers”

          Says the butthurt media that said Hillary had the presidency in the bag.

          Trump has excellent poll numbers for the people that want him in office. Trump has bad poll numbers with those people who don’t like Trump.

          Trump has been in office for less than 90 days and he is getting a pretty justice appointed to the SCOTUS. I am impressed in how much he has done in less than 90 days that curtails rampant government bloatiness.

          1. “Trump has excellent poll numbers for the people that want him in office. Trump has bad poll numbers with those people who don’t like Trump.”

            It’s gonna take a lot of work to repair the damage Russia has done to American brains.

            1. If Russia is so dangerous, why did we give them so much Uranium under Hillary Clinton’s watch one wonders?

              1. The stupid, it burns.

            2. Tony, you lefties are just making this stuff up now or do you really believe what you say?

              According to your delusion, I (an American who lived through the USSR waiting to nuke us into oblivion and served in the US military against Soviet aggression) am influenced and/or listen to what Russians say and what they say has literally damaged my brain.

              You lefties don’t have any idea how insane you are, do you?

              1. You didn’t know it was coming from the Russians though.

        2. The respected the USA under Trump’s predecessor, President Doormat? Really?

  13. There is little hope for the Nation unless these so called Republicans fight back against the forces of collectivism with fervor. I am glad to see that these rules can be used to push forward the ideals of freedom for a change.

  14. Go along to get along gave us Kagan, Sotomayer, Ginsburg, Bryer. Viva la “extreme” move to more libertarian leaning justices…

  15. “A future, progressive president with a liberal majority in Congress will be able to push judicial nominees that stretch the Supreme Court far beyond its traditional middle-of-the-road political views.”

    This comment would have made sense if written 90 years ago. I wouldn’t consider anything that happened after FDR to be “middle of the road”. “Illegal raw federal power grab” is the phrase that comes to mind. I will predict one thing though. A progressive president will eagerly appoint judges who will find ways to reign in the first amendment with “sensible” regulations on speech.

    1. I’d also note that liberals will probably never be a majority of congress, and were not during Obama even when democrats held a majority. Liberals are just a segment of the democratic party that controlled much of its leadership the last several cycles. It took a lot of misdirection and media collusion to pull off what liberalness Obama did implement, and it still cost the party’s centrists dearly. Though yeah, they might get extreme justices through more easily than extreme legislation.

      1. So much this.

        The hard left recognizes what they truly lost with Hillary’s defeat. The courts were their last bastion, losing that is the source of so much rage.

        In many ways Obama was the 21st century version of Pickett’s charge.

    2. The democrats all but promised to nuke the filibuster if hillary had won and they had taken the senate. Every escalation has come from the left. Both parties have to agree to de-escalate, and that’s impossible as long as team blue continues behaving the way they have been for years now.

  16. To counteract the dangers of majoritarian appointees, how about limiting appointees to the Supreme Court, and maybe to circuit courts, to terms of 12 or 15 years?

  17. I think they should call it the Harry Reid maneuver, just to rub the leftards’ noses in it.

    -jcr

  18. So out of curiosity, if the Republicans forsee losing the majority in the Senate in ’18 or ’20, would they be able to change the rules back to restore the filibuster to pre-2013 status, and then vote in a rule change requiring 2/3rd of senators to approve future rule changes?

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