The recent attempt by Senate Democrats to keep Neil Gorsuch off the Supreme Court puzzles me, largely because the results were predictable, and even Democratic senators should have been able to see that.
First, the tactic the Democrats used, the filibuster, has never been successful in defeating a nominee for associate justice of the Supreme Court.
Second, it was inevitable that use of the filibuster by Democrats would result in the Republican majority getting rid of it, allowing simple majorities to confirm anyone they wanted in the future. This is the same thing that Democrats did when they were in charge and Obama’s lower court nominees were being held up.
This was politically tricky for Democrats. Opposition to President Trump’s choice of Gorsuch could hurt Democratic senators up for re-election in states that voted for Trump. But here was an opportunity for Democrats, faced with the obvious, to at least pretend that they were not being obstructionists for purely partisan reasons, and by that gesture possibly buy some goodwill somewhere down the road.
Anyway, it’s history, and the filibuster as a tool to prevent a supreme or lower court nominee appointment is gone.
But what is a filibuster?
A filibuster is simply a tactic used to prevent a vote on a topic being debated by talking it to death. When debate on an issue has gone on for an allotted period of time, a motion to close debate, called cloture, is in order. If the cloture motion passes, the debate is ended and a vote on the subject at hand is taken.
Generally, only a majority of those voting is necessary to pass a cloture motion, but in the Senate, it takes a supermajority vote of 61 to end debate on certain issues, Supreme Court nominations having been one of them. This means that a minority of only 40 senators can force debate to continue so that the topic is never voted on, thus defeating it.
Initially, cloture took only a simple majority in the House and Senate. But in 1807 the Senate rewrote its rules and eliminated the cloture vote completely, thinking perhaps that even enators would eventually run out of air and sit down and shut up. Wishful thinking.
Attempts to re-instate a cloture rule were continually defeated by filibustering (no surprise there) because there was no way to shut off debate. But in 1917, President Wilson, seeing the issue as one of national security, got the Senate to agree to a “supermajority” cloture rule requiring a two thirds vote of the members. It was changed to three fifths in 1975.
The longest filibuster in Senate history was made in 1957 by Strom Thurmond of South Carolina to prevent a vote on a civil rights bill. Thurmond spoke for 24 hours and 18 minutes.
So, back to Gorsuch. Whether or not he had the acceptable judicial philosophy was a matter of opinion, but that he had the qualifications to sit on the court was never in doubt. He graduated from Columbia University, got his law degree at Harvard, followed by a Ph.D. in Law at Oxford. He clerked for Supreme Court Justices Byron White and Anthony Kennedy and was appointed to the 10th Circuit Court of Appeals by George W. Bush. Pretty good credentials.
But Senate Democratic leadership was bent on not confirming Gorsuch, largely, it seems, in retaliation for the Republicans’ refusal to even hold a hearing on President Obama’s nominee, Merrick Garland.
It was effective as a child holding its breath in defiance of its parents. So the Democrats filibustered, the Republican majority changed the rule on cloture to a simple majority, Gorsuch was confirmed, and the Democrats sat down, feeling fully vindicated in their defeat. Strange logic.
Yes, the Democrats were able to take their version of the high road and satisfy their dyed-in-the-wool supporters, but it didn’t do much for their image among those who think it’s time for politicians to work together And that’s where the balance of the votes may lie.
Jim Elliott is a former chairman of the Montana Democratic Party and a former state senator from Trout Creek.