Going 'Nuclear' on Gorsuch Promises More Politicized Courts

The Supreme Court is seen ahead of the Senate voting to confirm Judge Neil Gorsuch as an associate justice in Washington, D.C. on April 7. Senate Democrats attempted to filibuster Gorsuch, prompting Republicans to change the filibuster rules for Supreme Court nominations. Aaron P. Bernstein/REUTERS

It was a sign of the seriousness of the occasion that senators sat at their desks on Thursday while voting to take a hatchet to one of their chamber's most revered rules: Normally, when it's time to vote, they hurry onto the Senate floor and give a thumbs up or thumbs down before rushing back out. And it was a sign of just how politicized the process of confirming judges has become as senators somberly moved to dismantle the filibuster for Supreme Court justices on Thursday, while partisans were furiously zipping out press releases attacking politically vulnerable senators, seeking to score points over the showdown that led Republicans to go "nuclear."

"Sherrod Brown playing political games," read one subject line for a press release from the National Republican Senatorial Committee (NRSC), whose task is to get Republicans elected to the chamber. Brown, a Democrat from Ohio, is up for re-election in 2018. "Tester's Latest Disregard of Voters," read the subject line of another NRSC email, lambasting Montana Democrat Jon Tester, also up for re-election, for joining in the Democrats' vote to filibuster President Donald Trump's Supreme Court nominee. "When Tester had to pick a side, he chose his radical colleagues over Montanans—and voters will remember that," NRSC Communications Director Katie Martin warned in the statement.

Senate Democrats' attempt to filibuster Trump nominee Neil Gorsuch on Thursday was a dramatic step, but not entirely unprecedented, as Republicans claim. In trying to block the nomination by denying Gorsuch the 60 Senate votes needed to avoid a filibuster, Democrats were attempting to pull off something not done since 1968. They, however, blame Republicans for the poisonous politics of the nomination, arguing that the majority is trying to jam through Gorsuch, who they claim is too extreme, and too supportive of corporate interests.

But Democrats' real animus stems from Republicans' refusal to even consider the initial nominee for the post, Merrick Garland, who President Obama had tapped more than a year ago to take the seat left open by the death of Justice Antonin Scalia. Republicans insisted at the time that it was too close to the election (it was eight months away), which really was unprecedented. Republicans, in turn, defend themselves by arguing that it was Democrats who started the chamber down this road in 2013, when they voted to bar the use of the filibuster for other federal judicial appointments. And they insist Democrats were the ones who first introduced politics into the Supreme Court confirmation process all the way back in 1987, when they blocked the nomination of Robert Bork. Senate Majority Leader Mitch McConnell dedicated six paragraphs to lamenting Democrats' unfair treatment of Bork—30 years ago—in his remarks on the Senate floor on Thursday morning, shortly before he pressed forward with the vote to alter long-standing Senate rules. And on and on the finger-pointing goes.

The upshot is that the same hyper-partisanship that has tied up most legislating in Congress is also derailing the process for confirming judges across the federal courts. "It's not like...but for Bork, the Senate would all be sitting around singing 'Kumbaya,'" says Russell Wheeler, a visiting fellow in governance at the Brookings Institution think tank. "This is the same government that has a hard time passing spending bills." And that disintegration of comity and consensus—long-cherished Senate traditions—has implications not just for Capitol Hill, but for the judicial branch as well.

The biggest is that by erasing the 60-vote threshold that the Supreme Court and other federal judges need to meet to be confirmed, the Senate is freeing the president to nominate more polarizing figures. "Presidents in the past always took into consideration" that they could be filibustered, says Wheeler. That "led them to pick somewhat more moderate nominees than they would otherwise," because they knew they had to win at least a few votes from the opposing party. Now, a simple majority vote by whichever party is in power guarantees a spot on the bench. "I think you'll see more and more ideologically driven [nominees] on both sides," Republican Senator John McCain predicted earlier this week. He added: "We will regret, at some time, what we're doing." Still, McCain joined all 51 of his Republican colleagues in voting to overturn the filibuster on Thursday.

All the partisan wrangling surrounding the courts in recent years has already begun to undermine one of the judicial branch's most important assets—its perceived independence. In 2015, the Pew Research Center reported that the number of Americans who view the Supreme Court negatively hit a 30-year high. Their attitudes were heavily shaped by partisanship: More than 60 percent of Republicans said they viewed the Court negatively—a figure that jumped shortly after court decisions that appeared to go against the GOP, among them the upholding of same-sex marriage and portions of Obamacare. Democrats' attitudes were almost exactly opposite, with 62 percent viewing the Court favorably. Overall, the rising negativity about the Court mirrored the growing conviction that the Court was ideological, and not middle of the road.

Conservatives are now hoping to change that perceived liberal bias. With two current Supreme Court justices, Anthony Kennedy and Ruth Bader Ginsburg, more than 80 years old, and another, Stephen Breyer, closing in on 80, it's likely that Trump will get to nominate at least one or two more judges to the High Court. The next nomination will be even more politically charged than Trump's first, given that it would decisively tip what has been, for years now, a pretty evenly split ideological balance. Replacing Scalia with Gorsuch, a fellow conservative, maintains the status quo. But if Trump taps a conservative to succeed Ginsburg, a liberal, or Kennedy, a swing vote, it would shift the Court considerably to the right.

"For the life of me, I don't understand why the Democrats made such a fuss about this one," Republican Senator Orrin Hatch said after Thursday's votes clearing the path for Gorsuch's confirmation. "I expect Armageddon on the next one because that's going to change, assuming that Trump gets another one—that will change the direction of the Court."

In the short term, this would be a major victory for Republicans; in the long term, Wheeler says, it could create a democratic crisis. If Ginsburg, Kennedy and Breyer all retire or die while Trump is president, and if the Republican follows through on his promise to appoint very conservative, young justices in their stead, the Court would assume a hard-right ideological tinge for years to come. "What happens when a Democrat becomes president, especially when a Democrat has some sort of national consensus?" wonders Wheeler. "That could begin to threaten the legitimacy of the Court, if you have a Court filled with seven true believers that keep on standing in the way of the legislative preferences of the majority."

While Hatch, a senior member of the Senate Judiciary Committee, agreed that it's "going to be much tougher in the future to get people who are not just partisans," he also expressed hope that the fallout would prompt senators to take a more cooperative path going forward. "I really believe that we can do that and I think, maybe, both sides will wake up when we get another nomination."