The Post reports on the upcoming fight to confirm Judge Neil Gorsuch to replace late justice Antonin Scalia:
If Democrats successfully filibuster Gorsuch, McConnell and his caucus are likely to agree to change the chamber’s rules and end filibusters on Supreme Court picks. That would extend a rule change made by Democrats in 2013 that punished Republicans for years of attempts to block President Barack Obama’s nominees by ending filibusters for all executive branch appointments and lower-court picks.
As Republicans are quick to point out, no Supreme Court nominee has actually been kept off the court by a filibuster. Loss of the filibuster for the Supreme Court might be overblown, Republicans say.
After all, neither side seems interested in removing the filibuster for legislative matters. And, one could make the case, the real damage already was done when then-Senate Majority Leader Harry Reid (D-Nev.) nixed the filibuster for executive branch nominees and lower court judges. Had he not done so, arguably several of President Trump’s Cabinet nominees would not have been confirmed. Moreover, it is not as though fights for majority control of the Senate will suddenly become fierce, or Supreme Court confirmation battles will — poof! — become politicized. The ship sailed on both of those years ago.
Nevertheless, there are real and significant dangers for the Senate and the Supreme Court once the filibuster — and the threat of filibuster — disappear. Two come immediately to mind.
First, if Democrats were to defy all odds and retake the Senate in 2018, they likely would never agree to confirm a new justice (other than Merrick Garland!) should an opening arise. Thereafter, whether we are in the first or fourth year of a presidential term, the Senate with a majority of the opposing party may simply refuse to fill empty seats. The president could be faced with the choice of letting the seat remain open, making a recess appointment or negotiating with the other party for a very moderate justice. The last in such politically charged times would be the least likely.
Second, if the president’s party has a majority in the Senate, the Supreme Court nominees might become less qualified and more extreme. Trump might appoint a political hack, temperamentally unfit for the court (e.g., Rudy Giuliani) or a partisan zealot (Justice Steve King, anyone?). The next Democratic president with a Democratic Senate majority could get a Justice Elizabeth Warren or Justice Barack Obama onto the court. Are we ready for Justice Keith Ellison? In a closely divided Senate (as it is now), a few sensible moderates in the majority party could defeat a blatantly unqualified nominee. Sens. Susan Collins (R-Maine), Lamar Alexander (R-Tenn.) and others could prevent King from getting on the court, for example. Sens. Joe Manchin (D-W.Va.), Jon Tester (D-Mont.) and Heidi Heitkamp (D-N.D.) likely would reject hyperpartisans. But if the president’s party has a large Senate majority, moderates on both sides dwindle away and/or there is some plausible justification for the nominees (both Warren and Obama taught constitutional law, after all, and Giuliani was a star prosecutor), it would be hard to stop a parade of partisans from getting onto the Supreme Court.
In sum, the most likely effects of removing the filibuster would not be on the Senate. It is the Supreme Court that would suffer. Vacancies could remain unfilled for years; questionable figures could get onto the court. That seems to be where we are heading, since neither side can stop the escalation in the Supreme Court wars.