In a time of increasing polarization Sen. Susan Collins (R-Maine) is one of the few remaining “centrists.” Speaking from the Senate floor as a centrist and as a veteran of many Supreme Court nominations, she reminded her colleagues of recent history, urging them not to filibuster Judge Neil Gorsuch:
Mr. President, as you well know, unfortunately, it has become Senate practice of late to filibuster almost every question before this body simply as a matter of course. But that would be a serious mistake in this case, and it would further erode the ability of this great institution to function.
In 2005, when the Senate was mired in debate over how to proceed on judicial nominations, a bipartisan group of 14 senators proposed a simple and reasonable standard. That group, of which I was proud to have been a part, declared that for federal court nominations, a senator should only support a filibuster in the case of “extraordinary circumstances.”
Since coming to the Senate, I have voted to confirm four justices to the Supreme Court, two nominated by a Democratic president and two nominated by a Republican president. Each was confirmed: Chief Justice Roberts by a vote of 78-22; Justice Alito by a vote of 58-42; Justice Sotomayor by a vote of 68-31; and Justice Kagan by a vote of 63-37. Before I became a senator, this body confirmed Justice Kennedy 97-0; Justice Scalia 98-0; Justice Thomas 52-48; Justice Ginsberg 96-3; and Justice Breyer 87-9. Note that two of the current members of the Supreme Court were confirmed by fewer than 60 votes, but — consistent with the standard that we established in 2005 — neither one was filibustered.
Even Judge Robert Bork wasn’t filibustered, but rather defeated on an up-or-down vote, she recalled. She continued, “The results of the votes on Justice Alito’s nomination are also illuminating. In 2006, senators voted to invoke cloture by a vote of 75-25. That’s considerably more senators than those who ultimately voted to confirm him, which was accomplished by a vote of 58-42. Here again, senators proceeded to a yes-or-no vote on the nomination.” She warned that “playing politics with judicial nominees is profoundly damaging to the Senate’s reputation and stature. It politicizes our judicial nomination process and threatens the independence of our courts, which are supposed to be above partisan politics. Perhaps most important, it undermines the public’s confidence in our judiciary.”
She can make the case without hypocrisy because she was among the few Republicans who wanted to at least give Judge Merrick Garland a hearing. “The Constitution’s very clear that the president has every right to make this nomination, and then the Senate can either consent or withhold its consent,” she said last year. “The only way that we can do that is by thoroughly vetting the nominee, and that means having personal meetings, which I have scheduled to come up in about three weeks, or — and to hold a public hearing.” Her argument did not carry the day.
As a result, her GOP colleagues now may reap what they sowed when they refused to give Garland a hearing, let alone an up-or-down vote. Republicans crow that Senate Majority Leader Mitch McConnell (R-Ky.) “won” that standoff, but he surely provoked the current filibuster threat. As an institutionalist, McConnell, ironically, may provoke and then carry out a “nuclear option.” If so, the result may be that President Trump, if he gets another pick, will choose some wide-eyed radical or underqualified figure. And should a Democratic president with a Democratic Senate decide to do so, the same could be undertaken from the other party.
We find great merit in the plea advanced by Collins that the Senate “should resist the temptation to filibuster a Supreme Court nominee who is unquestionably qualified; the temptation to abandon the traditions of comity and cooperation; the temptation to further erode the separation of powers by insisting on judicial litmus tests.” I would like to think that “the Senate to rise above partisanship and allow each and every senator to cast an up-or-down vote on this nominee.” On the other hand, McConnell and the GOP brought this on themselves. We fear going forward the result will be an even more acrimonious Senate and a less impressive court stocked with partisans.