Last week, the US Senate employed the “nuclear option” to confirm Supreme Court Justice Neil Gorsuch. Instead of the 60 votes needed to confirm the candidate to a lifetime position in the highest court of the United States, Republicans only needed 51, or a simple majority.
In an action orchestrated by Senate Majority Leader Mitch McConnell (R — Ky.), the Senate rules changed so that lawmakers in the minority party are no longer able to block presidential appointments to the Supreme Court. This move is so extreme that it is colloquially known as the “nuclear option.”
There is a strong case for demanding a supermajority when the Constitution is at stake, one which has been replicated in many countries with written constitutions. Without this threshold, concerns that the recent change of rules will place less importance on how a judge has ruled prior to his nomination to the Supreme Court abound. Instead, the focus will shift toward judges acting more like political appointees. At first glance, there seems to be a danger that Supreme Court justices will now be idealists representing political interests, as opposed to moderate judges who could achieve a bipartisan backing with 60 votes.
However, the system of constitutional checks and balances between the judicial and the executive still stands strong. The authority by which a federal judge blocked two of President Donald Trump’s travel bans still exists.
The Constitution makes no reference to either legislative or judicial filibusters, and, in fact, the judicial filibuster never existed before 2003, when it was created by the Democratic Party to defeat many of President George W. Bush’s conservative nominees to the federal appeals court. Thus, for some, any change to the filibuster would merely return the United States to the system used when the country was founded before it was altered by Democrats.
In this case, the nuclear option was only invoked after a Democrat-led filibuster left Gorsuch with only four Democrat votes, six short of the 60-vote threshold. Interestingly enough, Gorsuch, confirmed 54 to 45, got more votes than did Supreme Court Judge Clarence Thomas at 52 to 48, but Thomas had not even been filibustered.
After the failure to repeal the Affordable Care Act, Washington, D.C., is less bipartisan than ever. The focus in the legislative branch seems to lie less in choosing a high-quality judge and more with sending the president a message. Democrats want to fight back every aspect of his agenda and nominations, even in the Supreme Court, which has traditionally been void of partisan play.
Partisan rancor has no place within the Supreme Court. It is a shame that Democrats fought so hard against a perfectly moderate judge. Denying a candidate, not because of his lack of qualifications, but simply because he came from the opposite political party, is dangerous. At the end of the day, the victims of this mindless political bickering will only be the American people.
Martha Petrocheilos is a student at the Law Center. Millennial’s Corner appears every other Tuesday.
