Democrats in the Senate are debating whether or not to attempt to block the nomination of Neil Gorsuch to the Supreme Court. Such a move would force Mitch McConnell to change Senate rules to make Gorsuch a Justice by making Supreme Court nominations subject to a simple majority vote. While it is possible the remaining undecided Democrats will vote to approve Trump’s nominee, he’ll essentially need to run the table of those senators, which seems unlikely. So, the filibuster is likely to die. What could this mean for future Supreme Court nominees?
The first point that has to be considered is whether the filibuster could have survived in any scenario. Had Hillary Clinton won the presidency, and Republicans held onto the Senate, some Republicans suggested that the seat could just be left open indefinitely (if you think that sounds like something Ted Cruz would say, that’s because it was Ted Cruz). Perhaps the filibuster simply doesn’t work in our hyper-partisan environment, and would have led to more and more court vacancies. While that’s obviously not the outcome we want to see in our courts, we do have to consider if want our divided politics to spread to our judges and justices.
If the filibuster is used on Gorsuch and eliminated, both parties will be able to explicitly campaign on their ability to appoint and block future Supreme Court nominees. In 2018, Democrats will try to persuade their base to turn out to regain the Senate majority in the hopes that they can block any further Trump appointments. When a Democrat returns to the presidency, the GOP will do the same. The country will rapidly approach a new reality of politics: that the only time a new Supreme Court justice can be appointed is when the White House and Senate are controlled by the same party. As the Court becomes more of a political entity, the public’s view of the institution will continue to degrade, as will the legitimacy of its rulings. Even the most non-ideological appointees cannot help but be politicized by such a toxic process.
Part of the reason the Court will be perceived as more political if the filibuster is eliminated is because, well, it will be more political. Both parties are finding it increasingly advantageous to appeal to the base and to pay less attention to moderates. If this really is the formula for success in national politics today, and the rules of the Senate permit it, what is the advantage in choosing a moderate Supreme Court nominee? While progressives are rightly furious about the way Merrick Garland was treated, many actually saw his nomination as a disappointment when it was announced. Meanwhile, President Trump floated the idea of appointing Ted Cruz to fill Justice Scalia’s seat, and may have felt more compelled to choose him had he known that the filibuster would be gone. Perhaps if he has the opportunity to fill another seat, Trump will recognize the popularity such a move would have with the Republican base and see little advantage in pleasing moderates or conservative Democrats with a Garland-esque pick.
Anyone who is worried about the politicization of the judiciary should be worried about the likely destruction of the filibuster on Supreme Court nominees this week. Ultimately, blowing up the old rules for a judge who is, in the end, a mainstream conservative may not prove to be a wise move for the country. Perhaps a later, more extreme pick from President Trump will drive away GOP senators like Lindsey Graham or John McCain, and the filibuster can be preserved. Or, perhaps Senate Republicans will vote for any conservative Trump nominates out of desperation to shift the balance of the Court. Senate Democrats should weigh these possibilities carefully before they change the deliberative nature of one of the few institutions in the United States where deliberation can continue to exist.