Photo by Davis Staedtler. Flickr. Attribution 2.0 Generic (CC BY 2.0)
On September 26, President Trump announced his intention to nominate Amy Coney Barrett to replace Ruth Bader Ginsberg on the Supreme Court. Ginsberg died 8 days before and was considered the anchor of the Court’s progressive wing.
The nomination reignited claims of unfair treatment by Senate Republicans who refused to hold confirmation hearings four years earlier for President Obama’s nominee Merrick Garland. Senate Republicans blocked the nomination saying it was too close to the 2016 presidential election – approximately 8 months. At the time, Majority Leader Mitch McConnell argued,
“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice.”
Now, in an impressive display of hypocrisy, McConnell pledged to fill the Ginsberg vacancy. McConnell brushed aside criticism, arranged the hearings, and the Senate confirmed Barrett’s appointment just a week before Election Day.
The Barrett nomination illustrates the power of a Senate majority and the rules a majority party can exploit to influence judicial appointments. And, fatefully, in 2013, it was a Democrat majority that changed the Senate rules which ultimately led Republicans to confirm not only Barrett but Kavanaugh two years before and Gorsuch in 2017.
The Nuclear Option
To end debate (filibuster) in the Senate, 60 Senators are required – cloture vote. In practice, if the majority party cannot reach the 60 vote threshold judicial nominations fail.
During Barak Obama’s first term, Republicans (in the minority) were successful in filibustering many federal circuit and district court nominations. Of the 67 times between 1967 and 2012 that the filibuster was used on a judicial nominee to circuit or district courts, 31 occurred during the Obama administration. Frustrated, Democrat Senate Majority Leader Harry Reid pushed for and passed the so-called nuclear option. The measure eliminated the 60-vote rule and replaced it with a simple majority vote. Democrats would therefore only need 51 votes to end a Republican filibuster.
At the time, Mitch McConnell criticized the measure, “It’s a sad day in history of the Senate, a power grab” by Democrats.
The nuclear option immediately impacted Obama’s judicial nominations to circuit and district courts (see graph). Nearly 90% of Obama’s nominations for the federal circuit courts were confirmed – a whopping 40 point improvement. District court confirmations also jumped 13 points, from 76% to 89%. The Democrats had stopped a decades long slide in confirmation rates. If they could maintain control of the Senate, their judicial confirmation problems were solved.
It was not to be. In the 2014 Senate elections, Republicans gained nine Democratic-held seats and reclaimed the majority. Republicans would now utilize the nuclear option against Democrats. Shortly thereafter, Obama’s confirmation rate plunged to historic lows. What appeared to be a brilliant maneuver by Senate Democrats in 2013, turned out to be a major liability in 2015.
Extending the nuclear option to Supreme Court nominations
On April 3, 2017, Senate Democrats filibustered Trump’s nominee to the U.S. Supreme Court – Neil Gorsuch. Recall, the year before Majority Leader McConnell rejected Obama’s pick – Merrick Garland – for that same vacancy. Democrats were therefore especially motivated to block Gorsuch.
McConnell was equally determined to confirm Gorsuch. He orchestrated his own nuclear option. After failing to muster the 60-votes needed to overcome Democrats’ filibuster, McConnell identified the Democrats invocation of the nuclear option in 2013 as an important Senate precedent which enabled him to extend the measure to Supreme Court nominations – not just circuit and district courts.
In a contentious party line vote 52-48, Republicans replaced the 60-vote rule for Supreme Court nominations with a simple majority. Thus, to end a filibuster, only 51 votes were required instead of 60. A truly stunning turn of events. Republicans quickly voted to end the filibuster and Gorsuch was confirmed the next day.
Was Republican Majority Leader Mitch McConnell unfair because he blocked Obama’s Supreme Court nominee but then cleared the path for Barrett’s confirmation? Democrats think so. After all, by confirming Barrett just days before the election, McConnell summarily rejected his own declarations for blocking Merrick Garland.
In politics, raising objections about fairness generally means you have lost. And in this iteration of Supreme Court nominations, Democrats were throttled. McConnell obviously reversed course. But the roles had reversed. Republicans held the majority and Trump occupied the Oval Office.
For politicians, circumstances shape judgments not steadfast principles. The news media delights in pointing out the flip-flops. But that’s like noting quarterbacks pass the ball.
Power is to be used. When the opportunity presented itself, majority leaders from both parties used it.
Nevertheless, the use of the nuclear option destroyed long-standing Senate norms. The 60 vote threshold offered the minority party real power. If they could not reach 60 votes, the majority party was forced to compromise on judicial appointments. By reducing that threshold to 51 votes, presidents now have little incentive to choose centrist justices who attract votes from both parties. Rather, if the president’s party controls the Senate, ideologically extreme picks are more likely. The nuclear option also portends more combative nomination hearings. A frustrated minority turns to other means to deny the nomination including strong personal attacks.
With the old 60 vote threshold, the trio of Trump Supreme Court picks – Gorsuch, Kavanaugh, and Barrett – may never have been nominated. Senate Republicans could not reach the 60 vote threshold. Knowing this, Trump would be forced to pick more centrists nominees to end the gridlock. Instead, Republicans found 51 votes and Amy Coney Barrett adds a strong conservative voice to the Roberts Court that now includes 6 conservatives justices.
The dynamics of the nomination processes point to a basic lesson about courts: they are fundamentally political. Just like presidents and legislators, judges have preferences about what government should do, and they use those preferences to guide their interpretations of laws that ultimately shape public policy. That’s why Senators engineer such elaborate plans to influence who in fact becomes a federal judge.
Finally, nominations highlight a relative weakness of the judicial branch. The courts are dependent on the executive and legislature for their personnel. To have a shot at the top spot, judge’s careers must correspond to prevailing political standards and then meet the difficult challenges of a Senate confirmation hearing. The timing must be right. Those that successfully traverse the obstacles and ultimately sit on the bench are therefore as strategic and politically astute as any other political figure.