SCOTUS Fight Will Change Everything

There was no filibuster of Robert Bork’s 1987 confirmation for the Supreme Court. He was given a vote on the floor of the Senate and defeated 42-58. There was no filibuster of Clarence Thomas even though one could have been theoretically sustained considering that he only received 52 votes to be confirmed as a Justice to the Supreme Court. In both cases, the Democrats granted their unanimous consent to a motion to proceed to a full confirmation vote. However, there is no possibility that there will be unanimous consent to proceed to a similar vote on the nominee President Trump announces tomorrow night at 8pm. Democratic Sen. Jeff Merkley, for one, will exercise his right to object.

The best precedent for this happened when John Kerry objected to proceeding to a vote on Samuel Alito, but his effort went down to defeat and Alito was confirmed with 58 votes, which was less than the 60 needed to overcome a filibuster. If those Democrats who refused to confirm Alito had refused to allow a vote at all, he would likely not be on the Supreme Court today.

I say “likely,” because it’s possible that the Republicans would have responded by invoking the so-called Nuclear Option and taking away the minority party’s right to stop a vote on Supreme Court nominees. It’s hard to say if that would have happened back in 2005, but it seems more certain that it will happen this time around.

Before I get to that, though, it should be kept in mind that this nomination will be unusual in at least two important respects. First, it is only happening because the Republicans blocked any consideration of Merrick Garland, President Obama’s nominee to replace Antonin Scalia. That move was unprecedented and has invited payback in kind. The second reason is that this nomination will be made hastily without the normal consultation and (tacit) approval of the Senate minority’s leadership. It’s not unusual for the minority to make a big fuss about opposing a Supreme Court nominee, but they usually have the ability to veto really radical appointments by threatening to filibuster them. In the end, for example, John Roberts was seen as acceptable by Democratic leaders even though they didn’t want him on the Court. Alito was a much closer call, which is also why he’s the best precedent for what we’re about to see. In the case of Bork, the Democrats’ warnings were ignored, but they were able to defeat him outright without resorting to procedural tactics.

As for the Republicans, they also signaled (quietly) that Sonia Sotomayor and Elena Kagan would be acceptable to them. The result has been that both parties have been able to put (respectively) liberal and conservative Justices on the Court, but they’ve had to restrain themselves somewhat in their choices. Again, Alito pushed the envelope in this respect further than it had been pushed before.

In this case, no real effort has been made to prevent a filibuster, which is the same as inviting one. That can only mean that the administration’s expectation is that the Senate will invoke the nuclear option and do away with the filibuster for Supreme Court nominees.

This will, of course, cause a massive uproar and it will drown out all the things people are talking about today, from the Muslim immigration ban to putting Steve Bannon on the National Security Council to the Russian question to the wall on the Mexican border to the threat of war over Taiwan with China to Trump’s inability to discern the difference between reality and fantasy.

Maybe that’s half the point, especially because conservatives are so motivated over this Supreme Court appointment that they’ll set aside everything else to fight for it.

I don’t have any great advice for how to prevent people from getting distracted other than to point out that people are at risk of getting distracted.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.