High Tensions and Fractured Traditions Before a Supreme Court Fight
Posted September 1, 2018 4:46 p.m. EDT
Updated September 1, 2018 4:54 p.m. EDT
WASHINGTON — The Senate on Tuesday will begin what is expected to be a contentious but predictable Supreme Court showdown under a judicial confirmation process that appears to be almost irreversibly damaged and polarized.
The elimination of the 60-vote filibuster against most judicial nominees by Democrats in 2013 and by Republicans against Supreme Court nominees in 2017 has upended the Senate’s role of offering advice and consent on the president’s picks. It now allows the majority party free rein to push through nominees with little to no consideration for the views or objections of the minority — a major break in Senate tradition.
The development has major implications for the integrity not only of the Senate, but also of the federal courts, which are increasingly seen by the public as just another venue for political wrangling.
“I don’t know that I would say the system is broken, but I do think it has been mauled pretty badly,” said Sen. Orrin Hatch, R-Utah, and former Judiciary Committee chairman, who will be taking part in his 15th Supreme Court confirmation proceeding.
On Tuesday, Republicans will convene a hearing on the nomination of Judge Brett Kavanaugh despite furious objections from Democrats that relevant documents from his years in the administration of George W. Bush have not been produced. They say the Republicans are riding roughshod over minority rights in what amounts to a sham hearing.
“They are making a mockery of the process, and that is because the No. 1 goal of the hard right is to stack the bench with ideologues, because they know they cannot achieve their goals through the elected branches,” said Sen. Chuck Schumer, D-N.Y., the minority leader.
On Saturday, Schumer responded to an Associated Press report that the Trump administration would withhold from release 100,000 pages of documents from Kavanaugh’s Bush White House years, saying it had “the makings of a cover-up” during a holiday weekend.
“What are they trying so desperately to hide?” he asked in a statement.
But Schumer and his party can do little to stop the confirmation of Kavanaugh without help from Republicans, since his nomination can be brought to the floor and approved by simple majority vote. Absent some major disqualifying revelation in the hearings, Republicans seem intent on quickly putting Kavanaugh, who is currently a member of the U.S. Court of Appeals for the District of Columbia Circuit, on the Supreme Court. Republicans consider him an impeccable choice.
The demise of the traditional filibuster on judicial nominations — and the Republican decision in 2016 not to even grant Merrick Garland, President Barack Obama’s nominee, so much as a hearing — has caused partisanship on the issue to skyrocket.
One way to restore some order might be to revisit the filibusters, an idea that circulated among Republicans a few years ago but disappeared when they found themselves in such a strong position.
“I would vote for that,” Sen. Richard Blumenthal, D-Conn., said about bringing back the filibuster. “There was a reason for the filibuster, and it was rooted in fairness to the minority, and right now there is no fairness to the minority. In fact, there is a mockery of norms and traditions of fairness, which ultimately is hurting the country.”
Republicans scoff at the notion of bringing back the filibuster, and, given the harsh political environment, it is hard to imagine the Senate reversing itself. President Donald Trump is clamoring for the Senate to make the more drastic move of eliminating the ability to filibuster legislation — a step very unlikely to happen — and he would no doubt slam any effort that would throw a wrench into his judicial assembly line.
“I do agree that the 60-vote requirement does force you to do things in a more consensus way, and that is always better,” said Sen. John Cornyn of Texas, the No. 2 Senate Republican and a senior member of the Judiciary Committee. “But that is why we do have presidential elections and why presidential elections are so important — the type of people they would appoint to the court.”
“Unless somebody is corrupt or has something really egregious in their background, I am OK with 51 senators confirming federal judges,” Cornyn said.
It is easier for Republicans to take that view now with Democrats at a severe disadvantage and Senate Republicans and Trump able to install scores of conservatives in lifetime appointments on the federal bench. But when Democrats eventually regain power, it will be Republicans on the short end of the stick, without the power to prevent the confirmation of liberal jurists they oppose.
Cornyn and other Republicans like to say that the end of the judicial filibuster has only served to restore the Senate’s past approach to nominations. And it is true that filibusters had been used sparingly on nominations until the last two decades, when both parties focused their aim on judicial picks from the president of the other party.
But even though it was not always exercised, the right to filibuster acted as a threat and a backstop, and forced presidents to be more tactical in some court choices. It also helped ensure that home-state senators had a voice in judicial selections through the so-called blue slip approval process. If their reservations were not honored at the committee level, they then had the option of rallying their colleagues behind a filibuster. Without that leverage, the blue slip process is eroding.
“I actually preferred the old system because if it was really bad, you could stop it,” Hatch said. “Now you can’t stop anything.”
“It puts a lot of pressure on whoever is president to pick somebody of high quality,” said Hatch, adding that he believes that Kavanaugh far exceeds that standard.
Some senators believe that the deterioration of the judicial confirmation process cannot continue without undermining the stability and credibility of both the Senate and the courts. The wounds are deep and getting deeper.
“We are at a point now where there is a race to the bottom in terms of who is going to break more rules and more traditions in more ways,” said Sen. Chris Coons, D-Del., a member of the Judiciary Committee. “At some point we have to begin rebuilding or we will have nothing left.”
But rebuilding — if there is any — is not going to come before Tuesday. While Democrats will try to expose what they assail as an unfair process and a partisan choice for the court, Republicans will almost certainly use their majority muscle to fill a second Supreme Court seat with a Trump nominee.