Last Friday, the U.S. Senate finally filled the Supreme Court seat left vacant by Antonin Scalia’s death last February. Everyone knew it would be a contentious fight to determine his replacement, but I don’t think anyone expected the precise turn of events that have brought us to this moment. When the Republicans refused to consider Obama’s appointee Merrick Garland, I think we all expected Clinton to prevail in November and then to quickly bypass the partisan blockade and fill the seat.
But here we are today, with Donald Trump as president and Neil Gorsuch as our next Supreme Court justice. I must say I am quite satisfied with the latter outcome, no matter how tortuous the road had to be to get us to this point. Gorsuch is undoubtedly qualified for the job, with a sharp legal mind and an impressive educational and professional background. But despite his obvious qualifications, it was always clear that his nomination wouldn’t be without the sort of partisan theatrics we’ve gotten used to over the last decade.
There’s been a lot of caterwauling from the left over the evasive means used by the Republicans to get his nomination approved in the face of protests from Senate Democrats. They criticize the Republicans’ use of the “nuclear option” to lower the votes needed to invoke cloture, the rule which ends debate and prevents the opposition from launching a filibuster. So instead of needing to corral 60 votes to end debate, Republicans changed the rules to require a simple majority to approve Gorsuch to the Court. To Democrats, this rule change smells of an opportunistic abuse of power—and one which illustrates the obstinate partisanship of the Republicans.
But the Democrats really don’t have a leg to stand on here. During the Obama administration, they were in fact the first to use the “nuclear option” to clear Obama’s cabinet appointees that Republicans refused to consider. In this recent move, Republicans only extended the job started by Democrats to break through partisan gridlock when the roles were reversed.
Besides, the filibuster is no essential element to the Senate’s job of approving Supreme Court nominees. The Constitution only requires the Senate to give its “advice and consent” to the president in making judicial appointments. A simple majority is sufficient to meet this requirement, so the dramatically branded “nuclear option” is really perfectly constitutional and only represents a change in the rules by which the Senate conducts its own business.
But even though all this maneuvering has been technically constitutional, that doesn’t mean we should feel any better about what all this partisan posturing portends for the well-being of our representative democracy. Neither party bears any more blame than the other in contributing to the frankly pathetic present state of Congress. Democrats like to say that the Republicans started it all with their intransigence during the Obama administration, but this is just dishonest. The Democrats were dominant in Congress for the first two years of Obama’s presidency and acted as though the minority party was only a roadblock to their progressive agenda. Perhaps they wouldn’t have suffered such catastrophic losses in 2010 and 2016 if they had tried to pass Obamacare with at least a single Republican vote.
Both parties, when acting as either a majority or minority, have used the same tactics and have been prone to the same sort of partisanship that has rendered our supreme representative body inept. Senate debate rules, while not set forth in the Constitution, are an important part of the heritage of that legislative body as a place for reasoned deliberation. The Gorsuch nomination is not a step toward single party rule, as some would argue, but rather another episode in the long decline of Congress as an effective legislative assembly.
Meanwhile, the executive and judicial branches of the federal government continue to grow in power and influence. The debate surrounding Gorsuch’s nomination is instructive in showing both the power of the judiciary and the ineptitude of Congress. Both sides recognized that whoever fills the seat will potentially occupy it for decades and will have the chance to shape the direction of constitutional interpretation for years to come. The Supreme Court now rules on the most contentious issues of the day, giving the last word on such issues as Obamacare, religious liberty, campaign finance regulations and gay marriage. Meanwhile, Congress is reduced to spiking its own rules in order to get anything done, including nominating a justice to a court that is ever increasing its own power to interpret and shape the law.
And let’s not forget about the executive branch, which perhaps most of all could use some healthy legislative checking at the moment. For the past several decades, the president has acquired unprecedented power to issue unilateral executive orders and bypass Congressional approval in everything from environmental regulation to foreign wars. This is a gift to someone like Trump, who is far more inclined to act fast rather than bother with formalistic constitutional restraints.