Matthew T. Mangino
GateHouse Media
April 7, 2017
Congratulations, Neil Gorsuch. You are the newest
member of the United States Supreme Court. The question is at what cost?
The Republican-led U.S. Senate invoked the so-called
“Nuclear Option.”
Former Republican leader Trent Lott coined the term
to describe a rule change that would ban judicial filibusters and allow
up-or-down votes on the president’s nominees.
A filibuster generally refers to extended debate
that delays a vote on a pending matter, while cloture is a device to end
debate. Filibusters are used by opponents of a nominee or legislation, while
cloture is filed by supporters. Under the Senate rules as they existed
yesterday, it took 60 votes for the cloture-ending debate.
In 1917, the Senate voted to empower a supermajority
of 67 votes for cloture. In 1975, the Senate lowered the supermajority to 60
votes. The last Supreme Court nominee who faced a cloture vote was Samuel A.
Alito Jr. in 2006. In Alito’s situation, cloture passed with 75 votes and he
proceeded to a vote of the full Senate where he was confirmed.
The late Chief Justice, William H. Rehnquist, faced
a cloture vote on his confirmation to the high court and later on his
confirmation as chief justice. In 1968, President Lyndon B. Johnson’s nominee
for chief justice, Justice Abe Fortas lost a cloture vote. Fortas later
withdrew.
The relatively rare filibuster of a Supreme Court
nominee’s confirmation began this week. The Republicans did not have enough
votes for cloture. Seemingly, the debate would continue and Gorsuch’s
confirmation would not come up for a vote.
With no hope of confirmation does Gorsuch withdraw?
No, the Republicans change the rules, instead of needing 60 votes for cloture
the rule change provides a simple majority — 51 votes — for cloture, debate
ends and Gorsuch becomes the 113th justice of the U.S. Supreme Court.
What is apocalyptical about changing the rules? The
Senate likes to think of itself as the greatest deliberative body in the world.
The filibuster and cloture votes have long been revered as tools that prevent
hasty legislation and the confirmation of extreme nominees.
A rules change on Supreme Court nominees would be
momentous for the Senate, which prides itself on bipartisanship and consent
from all senators. Some warn that a rules change could begin to unravel Senate
traditions and perhaps end up in the complete elimination of the filibuster —
which could alter the reputation of the Senate.
As Democrats lament the dismantling of Senate
traditions, they need look back only a few years for the impetus for this
week’s action. In 2013, Democrats were in the majority and Sen. Harry Reid of
Nevada was their leader. He was upset about the blockage of President Barack
Obama’s nominees to federal appellate courts. Democrats pushed through a rules
change lowering the vote threshold for cloture for court nominees — except
those for the Supreme Court — from 60 votes to a simple majority vote.
The current situation was certainly exacerbated by
the Republicans’ refusal, for nearly a year, to grant a hearing to Merrick
Garland, President Obama’s pick for the Supreme Court seat that Gorsuch will
now occupy.
The ultimate result of the “Nuclear Option” is this
president, and future presidents, will no longer need to look to more moderate
nominees to the Supreme Court, they can pick more ideological nominees capable
of winning only on a party-line vote, with no real concern for working across
the aisle to build consensus.
The U.S. Senate, long admired as a body steeped in
history and above partisan bickering and back-biting, has taken yet another
step toward mediocrity and public indifference.
— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
To visit the column CLICK HERE
Posts
No comments:
Post a Comment