Blog No. 137 Gorsuch and Filibusters: Some Afterthoughts

On Monday, Judge Neil Gorsuch was sworn in at a White House ceremony and became Justice Gorsuch. As nearly everyone must know, that event was made possible only by a change in the Senate rules allowing the Republican majority to avoid a filibuster and to confirm Gorsuch by a simple majority vote. In the weeks leading up to the confirmation vote, there was a good deal of ink (and cyber ink) deployed to ponder the questions of a) what Gorsuch’s addition would mean for the Supreme Court, and b) what the change in Senate rules would mean for that body. The most honest answer in each case is that no one really knows, and readers may have already had their fill of opining on both subjects. But in the calm that has, for a time at least, followed the storm, some brief thoughts may be in order.

Judge Gorsuch is a conservative replacing a conservative icon, Justice Antonin Scalia.  His oath for the office of Associate Justice was administered by Justice Anthony Kennedy for whom Gorsuch had once clerked and whom Gorsuch has described as a mentor. Although Kennedy is also a conservative, he has sometimes voted with the liberal justices in high-profile cases, a course that has placed him at the center of the current court and has long drawn the ire of conservative critics. (See Douglas M. Parker, The Green Bag, “Justice Kennedy, The Swing Voter & His Critics.”) Yet Gorsuch has shown few signs of Kennedy’s ideological flexibility and some analyses have suggested that he is likely to be even more conservative than Scalia. See, Washington Post, “Where Neil Gorsuch Would Fit on the Supreme Court.” According to the Post, the authors of one such study concluded that Gorsuch would be “a reliable conservative ‘voting to limit gay rights, uphold restrictions on abortion and invalidate affirmative action programs.’” To that list should no doubt be added gun control and physician-assisted suicide.

Predictions of future voting by Supreme Court Justices should be viewed with some caution and, in some cases, conservative justices have moved in a noticeably liberal direction during their tenure on the Court (e.g., Justices Harry Blackmun, John Paul Stevens, and David Souter). Nevertheless, there is little reason to challenge the assessment of Gorsuch as not only a solidly conservative choice, but arguably an extremely conservative one. For that reason, Gorsuch is someone that I would have been reluctant to recommend or endorse.

On the other hand, Gorsuch does have strong professional credentials and was highly qualified in every technical sense. Indeed, he came with impressive endorsements from beyond the conservative world. Laurence Tribe, an eminent constitutional scholar and a Democrat, tweeted that “Gorsuch is a brilliant, terrific guy who would do the Court’s work with distinction. He is and he would.” Former Obama acting solicitor general Neal Katyal, introduced Gorsuch at his confirmation hearings describing him as a “wonderfully humane and decent person,” and wrote an op-ed suggesting that “liberals should back Neil Gorsuch” because he would “stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws.” Given Gorsuch’s positive qualities, why did Democrats not only oppose Gorsuch’s nomination but seek to block it by a filibuster?

It is within recent memory that nominees for the Supreme Court received bi-partisan support without regard to ideology, and a brief bit of history may be helpful to understanding how we got where we are. Some have placed the beginning of partisan battles over Supreme Court nominations with that fought over Robert Bork in 1987. Antonin Scalia had been unanimously confirmed the year before, but Bork was rejected by a vote of 58-42, largely on partisan lines. Nevertheless, a few months later, Anthony Kennedy was unanimously confirmed to fill the same vacancy. Then, in the early nineties, Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer were all confirmed by large bi-partisan margins. The only exception during this time was Justice Clarence Thomas. His confirmation hearing raised unique personal issues but  he was not the object of a filibuster and was confirmed 52-48.

A further confirmation did not occur until 2005 when Chief Justice Roberts was nominated to fill the vacancy created by the death of Chief Justice William Rehnquist. Roberts was confirmed by 78-22 with all 22 no votes cast by Democrats. The following year, Justice Samuel Alito drew sharp Democratic opposition, not only because he was a strong conservative but because he would replace a Justice, Sandra Day O’Connor, who was a Republican but who had made a record as a moderate on the Supreme Court. An abortive filibuster attempt was defeated 72-25 and Alito was confirmed by the margin of 58-42. During the Obama administration, Justices Sonia Sotomayor and Elena Kagan replaced Justices (David Souter and John Paul Stevens respectively) who were Republican appointees but who had become identified with the liberal wing of the Court. Thus neither appointment threatened a major shift in the political dynamics of the Court, and neither Sotomayor nor Kagan were the subject of a filibuster. Both were confirmed by votes largely along partisan lines, but with some Republican support in each case. (Sotomayor, 68-31; Kagan, 63-37).

Although that history is uneven, it appears that in recent years partisan opposition to Supreme Court nominees has become more common, particularly when an appointment would alter the balance of the court. The growth of partisan opposition, of course, parallels the increasing polarization in Congress and indeed among the public.  Judge Gorsuch asserted, in the manner common to Supreme Court nominees, that he would simply apply the law, saying, “There’s no such thing as a Republican judge or a Democratic judge. We just have judges in this country.” Nevertheless, Democrats had reason to be concerned about the ideological perspectives that he would bring to the task of judging. On the other hand, since Gorsuch was a conservative replacing a conservative, the nomination did not have the same dynamic as Alito’s succession to the O’Connor seat. Thus the driving impetus to not merely oppose Gorsuch, but to mount a filibuster, lay elsewhere: in resentment and outrage over the Republicans’ refusal to consider President Obama’s nomination of Judge Merrick Garland to fill the Scalia seat.

Although Judge Garland had been in many ways an outstanding nominee, I did not share the Democrats’ outrage over the refusal to confirm him.  It seemed to me that Senator McConnell, citing earlier pronouncements by Vice-President Biden and others, made a persuasive case that had positions been reversed, the Democrats would have acted in just the same fashion. It was not merely that the vacancy had occurred in an election year, or even that Garland, a relative liberal, would replace a quintessential conservative. Stakes were further heightened by the fact that a conservative majority of 5-4 (subject to Kennedy’s occasion defections) would immediately become a 5-4 liberal majority. In a more perfect world, that would not matter, but that is not our world nor has it been. It may be worth noting that the Court has been entangled with politics since its earliest days.

In a 1987 book, Chief Justice Rehnquist recounted the reaction of Thomas Jefferson to a vacancy on the Court that occurred during the Presidency of his successor, James Madison. Although Jefferson is today regarded as the father of the Democratic Party, his party was then known as the Republican Party and its principal opposition was the Federalist Party. Upon the death of a Federalist Justice, William Cushing, Jefferson wrote to his former Secretary of State, Albert Gallatin, in what Rehnquist aptly described as rather gleeful words:

I observe old Cushing is dead. At length then we have a chance of getting a Republican majority in the Supreme Judiciary….The event is a fortunate one and so timed as to be a godsend to me.

In any case, the Democrats’ decision to attempt a filibuster of the Gorsuch nomination seemed to serve no useful purpose except to satisfy their base (demonstrating that compulsion to “satisfy the base” is a virus not exclusive to Republicans). It was clear from the outset that, if necessary, the Senate rules would be changed to permit confirmation by a mere majority, and in due course so they were.  On the other hand, it is not clear that much harm was done by the Democrats’ seemingly feckless maneuver.

Some Democrats argued that they should refrain from a filibuster in order to avoid a change in the rules and to preserve a possible filibuster for Trump’s next nominee. That nominee, it was said, might be even more objectionable to them than Gorsuch and would be more significant because the next vacancy, presumably would involve one of the two oldest Justices, Kennedy or Ginsburg. Replacement of either would have a more significant impact on the balance of the Court than the replacement of Scalia with Gorsuch. If Ginsburg were replaced by a Trump nominee, the 5-4 conservative majority would become 6-3; if Kennedy were replaced the conservative majority would remain 5-4 but presumably become significantly more cohesive and, hence, powerful. In that situation, it was claimed, the mere possibility of a filibuster would provide leverage that might influence Trump to select a more moderate nominee than he would otherwise. That notion, however, was a pure speculation not a particularly persuasive one.

Some on both sides of the aisle lamented the change of the Senate rule, worrying in that it may lead to abandoning the filibuster with respect not only to nominations but to legislation as well. Such a change, they claimed, would fatally impair the ability of that body to function in the deliberative manner which is supposed to be its virtue: a Senate without the filibuster was said to be no better than the House of Representatives. Possibly, but leaders of both parties have pledged to reject any such change. Moreover, it is far from clear that the legislative filibuster in is present form has had the salutary effects claimed for it. The first that many of us heard of the filibuster was as a mechanism employed by Southern Senators to defeat civil rights legislation. While that dismal use has disappeared, a rule change in 1970 has allowed the use of legislative filibusters to mushroom. As George Will pointed out in National Review: “In the 52 years after 1917, there were only 58 cloture motions filed; in the 46 years since 1970 there have been 1,700.” Quoting Congressman Tom McClintock, Will made the case for reform:

As a result of today’s Senate paralysis, McClintock says, “The atrophy of the legislative branch drives a corresponding hypertrophy of the executive branch.” The promiscuous use of faux filibusters — requiring 60 votes to proceed with consideration of, or votes on, ordinary legislation — blurs the implicit constitutional principle that extraordinary majorities are required only for extraordinary matters, such as proposing constitutional amendments, overriding vetoes, and ratifying treaties.

Returning to the Supreme Court, Justice Gorsuch may serve on the Supreme Court many decades and the influence he may wield over that time is well beyond the range of this observer’s crystal ball. Gorsuch, however, is almost certain to be an improvement over Scalia in at least one respect. His reputation and demeanor give assurance that Gorsuch opinions will not employ the acerbic, and sometimes offensive, rhetoric that was Scalia’s hallmark. For example, referring to an opinion by Justice Kennedy, Scalia remarked that if he ever joined such an opinion, “I would hide my head in a bag.” Scalia’s biting wit often entertained observers of the court, but may not have been the most effective means of coaxing agreement from his colleagues and seemed to many to be demeaning to the Court.

In terms of substance, much may depend on how and by whom the next vacancies are filled. While it is assumed that the next nominees will be submitted by President Trump and confirmed by a Republican Senate, nothing is certain in this uncertain world. In any case, the Supreme Court has proved to be a resilient institution and there is every reason to hope that it–and the Republic–will survive.