Don’t Cry for the Filibuster, My Fellow Liberals
Not much really changed when the Senate dropped this bomb, and Democrats know now there’s no point in playing nice anymore.
So the Senate, as expected, went nuclear Thursday, and from this point forward—starting Friday, and thereafter forever after—Supreme Court nominees will need only 51 votes to get on the Court.
I hate seeing Neil Gorsuch rammed through, which will happen Friday, as much as the next liberal. I suspect he’s seriously right wing and will be a nightmare to have on the Court for three decades or more. (Now here’s a grim thought: I will die with that man on the Court.) But he looks nice enough. It’s terrible that in our day and age everything basically comes down to how a guy looks and presents. Somebody can be as right wing as Atilla the Hun, but if he doesn’t look the caricature—if he literally doesn’t have wild eyes and bushy eyebrows and a handlebar moustache that he twirls while answering senators’ questions—he’ll skate through.
And yet, I say to my fellow liberals that all is not lost. People worry about two things here: one, the demise of a Senate tradition; two, the fact that now President Trump can nominate any kind of crazy right-winger to the Court, and he or she can be confirmed with 51 votes. Let’s break those worries down.
On the first point, I say sod the Senate’s traditions. The Senate’s traditions stink. The Senate’s traditions are reactionary and have been used time and time again in our history to block progressive change. The Senate was a compromise in the first place between small states and large states, and the Connecticut Compromise that created our bicameral legislature passed by just one vote. Small states have always had too much representation, and in the main, they tend to be more conservative states.
Then you have this filibuster, which arose in the 1820s and as you probably know was rarely used—only to block civil-rights bills—until the 1970s and 1980s. It’s a terrible rule because it makes an effective majority out of 41 no-voting senators. Like the guy from the Broadway show said in Federalist 22: “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is…to subject the sense of the greater number to that of the lesser number.” He added that such a provision would “destroy the energy of government,” handing outsized power to “an insignificant, turbulent or corrupt junto.”
So now the minority side won’t be able to filibuster a High Court nominee. The legislative filibuster remains in place (and in a better world, I’d like to see the legislative filibuster go too, but we’re not in that world right now). But in truth, the filibuster has been rarely used for Supreme Court nominees—just four times in the last half-century. The Democrats didn’t even filibuster Clarence Thomas. Times were still different back then. Bet they’d like that one back.
All this leads to the second point, which is indeed more problematic. Trump could nominate anyone, and all they’d need is 51 votes. I don’t know if Sebastian Gorka has a jurisprudential brother, but Trump could nominate him, fascist chest pin and all, and the Republican majority would confirm him in a flash. Or any of the actually-existing radicals. Roy Moore. Janice Rogers Brown. If you don’t know these people, read about them. They’re some of the greatest minds of the sixteenth century.
That’s something to worry about. Three current justices might not make it to 2021. Who knows what that bench could look like. It’s a terrifying thought, and there isn’t much we can do about it.
But two points. First, there wasn’t much we could do about it before. If Mitch McConnell didn’t go nuclear over Gorsuch, he was going to do it the next time, maybe over somebody even worse. So there’s no way to stop the Republicans putting Roy Moore on the Court if they want to. But there wasn’t any way to stop it last week, either. On that front, nothing really changed this week.
Second, inevitably in these matters, what goes around comes around. Those three justices might not hang on. But then again they might. And by 2021, God willing, the man who was (not) told by Elijah Cummings that he’s destined for true greatness will be back on 57th Street.
Then, the Democrats can push through liberal nominees with 51 votes. And, possibly, by 2024, the Court will consist of a 5-4 liberal majority, with young liberal justices like this man, whom I wanted Obama to nominate last year after Scalia died, and the Court will no longer be “a cog in [the Republicans’] political machine,” as E.J. Dionne put it in a bracing column today.