The Gorsuch Battle

A Bad System For Picking High Court Justices Persists

Neil Gorsuch is now the newest member of the U.S. Supreme Court.  He was confirmed only after the Senate changed its rules to abolish the filibuster that was to occur to block Gorsuch’s nomination.

Gorsuch received 54 votes, all that was necessary once the Republican majority employed the “nuclear option” and abolished the filibuster, which would have required 60 votes to end debate on Gorsuch. Three Democratic senators joined all 51 Republicans in attendance to make the confirmation a reality.

Most Americans associate filibusters with “Mr. Smith Goes To Washington” and the image of a lone senator arguing for hours on the floor. That has happened under not noble circumstances, too.  In 1957, U.S. Sen. Strom Thurmond postponed passage of a key piece of civil rights legislation by speaking incessantly for over 24 hours.  

During the Obama administration, then-Majority Leader Harry Reid (D-Nevada) observed that the president’s judicial nominees were being considered at an alarmingly slow pace, so he successfully altered the filibuster rules to prevent this dilatory tactic from being used to slow or block Cabinet nominees or judges in federal courts below the Supreme Court. Thanks to that change, 51 votes were then enough to get cabinet officials into their White House slots and judges into their judicial seats.

Americans United did not take a formal position on this procedural matter, but I do remember chatting about it at a conference and noting, “I am concerned that this will come back to haunt Sen. Reid.”

For the first year, it went well for Reid: Nearly 100 of Obama’s judicial appointees were confirmed – a breathless pace when you consider that he averaged about half that many annual confirmations during the first five years of his presidency. But confirmations slowed to a trickle after Democrats lost the Senate majority in January 2015. Once they lost control of the chamber, Democrats had no power to speed things up. As a result, President Donald J. Trump inherited more than 100 judicial vacancies upon his inauguration.

The haunting has begun, and the nuclear option was implemented to gain Gorsuch’s post. Gorsuch, only 49, stands to remain on the bench for decades. (It’s still the case that legislation can be filibustered, and there appears to be little support to change that.)

The process for appointing Supreme Court justices has become highly polarized in recent years. Sometimes, candidates are put forth who really are on the fringe. In 1987, President Ronald W. Reagan nominated Robert Bork for the high court. Bork’s extreme views alarmed many, and they mobilized to stop him. Bork failed to win confirmation. Eventually, Reagan did succeed in putting Anthony Kennedy on the court.

Bork was judged on his merits and got a vote. Remember, 1987 was close to the end of Reagan’s term, yet no one argued that Reagan shouldn’t have been able to fill the seat. But when Justice Antonin Scalia died in February of 2016, Senate Republicans decided it was out of the question to even vote on Judge Merrick Garland, President Barack Obama’s choice to replace Scalia.

Americans United opposed Gorsuch’s nomination because of some troubling First Amendment opinions he penned while on the U.S. 10th Circuit Court of Appeals. We joined other groups in rallying opposition. But Republicans decided that since they had the votes, they would change long standing rules and force Gorsuch onto the court.

I have long opposed term limits on any office holder, whether elected or appointed, but I am in the process of reconsidering my personal opinion on that matter, and I’d welcome your thoughts.

Setting a limit of, say, 10 years on a Supreme Court term (which would require a constitutional amendment) would ensure some healthy turnovers. Perhaps it would reduce the sense that every Supreme Court vacancy should be treated as a highly charged electoral campaign with vast sums being expended by supporters and opponents.

Term limits could also make it less likely that justices would feel a need to “hang on” indefinitely and make older Americans as likely as younger ones to get the appointment nod in the first place.

Finally, it might curtail some of the incessant efforts to predict the outcome of every decision by pundits based on endless parsing of prior comments by each justice.

There could, of course, be unintended consequences to such a change. But if the process gets any worse, I fear that the respect granted to the Supreme Court will dissipate even faster.

 

Barry W. Lynn is executive director of Americans United for Separation of Church and State.