Right Hooks

McConnell Kills the Filibuster

One way or another, Judge Gorsuch will be joining his colleagues on the Supreme Court.

Jordan Candler · Apr. 6, 2017

Update, Friday April 7: The Senate confirmed Neil Gorsuch to the Supreme Court Friday by a vote of 54-45.

Senate Democrats followed through Thursday morning on their promise to use a partisan filibuster for the first time in Senate history to temporarily derail Judge Neil Gorsuch’s cloture vote. Their victory was short-lived. Cloture failed by a 55-45 margin (only three Democrats sided with their 52 Republican colleagues), leaving Gorsuch short of the 60 “yes” votes needed in order to advance. But Senate Majority Leader Mitch McConnell immediately followed through on his pledge to outmaneuver Democrat obstructionists by implementing what’s become known as “the nuclear option,” which, as Democrats hate to be reminded, is also known as “the Reid Rule.” It’s a simple rules change that eliminates the filibuster for Supreme Court nominees.

As Bloomberg explains, “The ‘nuclear option’ allows Republicans to revise Senate rules with a simple majority vote, rather than the 67 typically required. McConnell has said he had no choice but to change Senate rules for Gorsuch and future high court picks because Democrats were ignoring a tradition of allowing nominees to proceed to simple-majority confirmation without a filibuster.”

He’s absolutely right. For example, in 2006 Sen. Dianne Feinstein opined, “I think when it comes to filibustering a Supreme Court appointment, you really have to have something out there — whether it’s gross moral turpitude or something that comes to the surface. Now, I mean, [Justice Samuel Alito] is a man I might disagree with. That doesn’t mean he shouldn’t be on the Court.” Her logic was correct. Ironically, and regrettably, she ultimately let her private sentiments dictate her cloture vote then just as she is now. Feinstein recently stated she found Gorsuch’s “originalist, judicial philosophy to be really troubling,” and, as such, his jurisprudence precludes her from advancing his nomination. Which makes the situation doubly ironic. Recall that in 2006, Feinstein — along with every other Democrat lawmaker at the time — supported Gorsuch’s nomination to the Tenth Circuit Court of Appeals.

Senate Minority Leader Chuck Schumer’s response was predictable: “Just as it seemed unthinkable decades ago that we would change the rules for nominees, today’s vote is a cautionary tale about how unbridled partisan escalation can overwhelm our basic inclination to work together and frustrate our efforts to pull back, blocking us from steering the ship of the Senate away from the rocks. There’s a reason it was dubbed the nuclear option.” Evidently, he forgot to counsel then-Senate Majority Leader Harry Reid likewise in November 2013, when Reid changed Senate rules to give non-Supreme Court nominees a reprieve from the 60-vote threshold. Their antics, like the hypocrisy of Sen. Feinstein, epitomize “unbridled partisan escalation.”

Meanwhile, on Tuesday The New York Times published an editorial under the headline, “The Supreme Court as Partisan Tool,” accusing McConnell of abusing his Senate power. However, in 2013 when former Senate Majority Leader Harry Reid changed the rules on judicial nominees to prevent the Republican minority in the Senate from blocking votes, the Times applauded the move under an editorial title, “Democracy Returns to the Senate.”

McConnell correctly says, “There cannot be two sets of standards, one for the nominees of Democratic presidents and another for the nominees of Republican presidents.” So Senate Democrats threw a tantrum and trashed Senate customs and traditions. And for what? If all goes according to plan, Gorsuch will Friday become the ninth member of the Supreme Court. At which point Justice Antonin Scalia will finally have a worthy replacement.


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