End of filibuster was inevitable

Senate filibusters for judicial nominations are dead. Sen. Harry Reid and the Democratic majority killed them for all but U.S. Supreme Court nominations in 2013. From that point, it was only a matter of time before the filibuster had seen its last days.

At a tactical level, it is hard to explain why Senate Democrats invited the end of the filibuster. The nomination of Neil Gorsuch to the late Justice Antonin Scalia's seat will not change the ideological balance of the Supreme Court. The next nomination may well change that balance for a generation.

Unhappiness over the refusal in 2016 of Senate Republicans to hold hearings or a vote on President Barack Obama's nomination of Judge Merrick Garland partly explains the Democrats' defiance. But the chance that moderate Republicans might balk at killing the filibuster at the time of the next nomination was surely worth taking, even at the cost of infuriating progressive activists. The chances of all future nominees for confirmation have been increased by the end of the filibuster.

The advantage for the country of allowing a Senate minority to block a judicial appointment is not obvious. It is attractive when one is in the minority, not so much when one is in the majority. Politicians and commentators opposed to the Gorsuch nomination have described the end of the filibuster for Supreme Court nominations as nothing short of catastrophic for the republic. It is hardly that.

The Constitution is full of checks and balances and supermajority requirements designed to slow action and require wide consensus. Laws need to be passed by a majority of both houses of Congress and avoid a presidential veto. Treaties require two-thirds of senators for ratification. A constitutional amendment requires two-thirds of each house just to be proposed to the states for possible ratification by three-fourths of all states' legislatures. Given the Founders' rich assortment of protections against majoritarian dominance, additional obstacles to action are harder to justify.

That said, there is a long history of such extra-constitutional obstacles. For example, the 19th century House of Representatives was often brought to a halt by the disappearing quorum, where minority congressmen wishing to obstruct business simply declined to answer roll calls, even while sitting in the chamber. This would deprive the House of a quorum and prevent any business from going forward.

Determined majorities also have a long history of overcoming these extra-constitutional obstacles. In 1890, Speaker Thomas B. Reed did away with the disappearing quorum by counting present members who refused to answer the roll call. When one congressman vehemently protested, Reed responded, "The Chair is making a statement of fact that the gentleman from Kentucky is present. Does he deny it?"

Politicians playing their edge, or contradicting today the position they took yesterday, is nothing new. The majority will do what they want; the minority will do what they can. Sen. Reid's elimination of filibusters on all appointments except to the Supreme Court was right in line with Speaker Reed's action in 1890, as was Sen. Mitch McConnell's elimination of the filibuster for Supreme Court nominees to pave the way for Justice Gorsuch.

American history is full of examples of judicial nominations that do not lead to an up or down vote. Nominations have been withdrawn after it was clear that the Senate would not consent. Some nominations have ended simply by the Senate's doing nothing. President John Tyler's attempts to fill one Supreme Court seat resulted in one nominee being rejected, four being withdrawn, and one having no action taken before a sixth nominee was confirmed. Three nominees for a second Supreme Court seat yielded one recorded vote - to postpone the nomination. While it might be desirable for every nominee to get a vote, that has never been a requirement.

But the idea that a minority should be able to hold up a majority ready to confirm a nominee indefinitely, or that there should be a de facto 60-vote threshold for approval of nominations, is simply not part of our tradition.

The standard modern history of filibusters of federal judicial nominees begins with the nomination of Justice Abe Fortas to be chief justice. It should not.

Fortas' nomination ran into trouble because of an ethical issue arising from his acceptance of payments for speeches that came from past clients and law partners. Fortas was also considered by many to be too close to Johnson. (A recent biographer of Fortas reports that he co-wrote Lyndon Johnson's 1966 State of the Union address while he was an associate justice.) Because he was already on the Supreme Court, his nomination also became a target for those who were displeased with the court's direction. All of these problems combined to derail his nomination.

According to Johnson aide Joseph Califano, the cloture vote was an effort to save face for the sitting justice. "Though we couldn't get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. 'With a majority on the floor for Abe, he'll be able to stay on the Court with his head up. We have to do that for him.' Fortas also wanted the majority vote.... On October 1, after a strenuous White House effort, a 45-43 majority of senators voted to end the filibuster, short of the 67 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination."

There were 24 Republicans and 19 Democrats who voted against cloture. Twelve more Democrats did not vote, making it clear that Fortas could not command a majority for confirmation. Whatever the defeat of the Fortas nomination stands for, it does not stand for the proposition that a partisan Senate minority could derail with a filibuster a nomination that a majority was ready to approve.

The first occasion in modern times that a Senate minority claimed the right to block nominations by filibustering was in 2003, when the nomination of Miguel Estrada to the D.C. Circuit was blocked. Its use against Estrada, a spectacularly well-qualified nominee who had immigrated at 17 from Honduras, was particularly shameful, as it amounted to the Senate minority stating that young Latino conservatives need not apply for appellate court appointments. A memo from the staff of Sen. Richard Durbin, D-Ill., called Estrada "dangerous" because "he is Latino and the White House seems to be grooming him for a Supreme Court appointment."

When Republicans were in the Senate minority after Obama's election, they used the filibuster with enthusiasm. In 2013, when Republicans held up three nominations to the D.C. Circuit, Sen. Reid eliminated the filibuster for cabinet and non-Supreme Court judicial nominations. Unlike with Estrada, the majority got its way.

When Obama nominated Judge Garland for the Supreme Court, the Senate majority got its way, too. By leaving Justice Scalia's seat vacant until after the presidential election, Sen. McConnell made the choice of a new justice an important issue in the election. Indeed, given the narrowness of President Donald Trump's win, it may have swung the balance. The fact that the choice of a new justice was before the people makes the complaint that Scalia's seat was somehow "stolen" ring hollow.

The end of the filibuster for judicial nominees was inevitable once it became acceptable to filibuster a qualified nominee like Miguel Estrada. If it had not been eliminated for the elevation of Gorsuch, it would have been in the future. Does anyone doubt that a Democratic Senate majority in 2022 would eliminate the filibuster when 45 Republicans could otherwise block President Oprah Winfrey's nomination of Goodwin Liu to the Supreme Court?

The Senate is not toothless without the filibuster. It would not consent to Harriet Miers' elevation. It voted down Robert Bork, Clement Haynsworth, and G. Harrold Carswell. Getting 51 votes is still no mean feat.

But the elimination of the filibuster will also make the nominations of centrists less likely. That helps conservatives. Recent Republican nominees like Harry Blackmun, John Paul Stevens and David Souter were functionally on the Supreme Court's left and others, like Anthony Kennedy and Sandra Day O'Connor, have often aligned on the court's left. One would have to go back to the 1962 nomination of Byron White to find a Democratic appointee who was at home on the court's right.

Whatever the future holds, both sides will have to live with the consequences of the end of the filibuster.