This post has been updated.
When the Senate takes up Judge Brett Kavanaugh, Trump’s nominee to replace retiring Justice Anthony M. Kennedy, it will be the first time since the adoption of Rule 22 in 1917 that the body will consider a Supreme Court nominee where a simple majority can end debate and force a vote.
And though Democrats did not filibuster Bork’s nomination, the process helped lead to recent efforts by both parties to limit the minority party’s filibuster rights on nominations. In 2013, then-Majority Leader Harry M. Reid (D-Nev.) curtailed filibuster rights on most nominations, which Majority Leader Mitch McConnell (R-Ky.) expanded to all nominations in 2017. You can see the many about-faces on this in the video above.
Before 1968, the Senate never invoked a procedure known as cloture to end debate on nominations. And cloture on Supreme Court nominees was only invoked four times before the nomination of Judge Neil M. Gorsuch last year.
But in recent years, the filibuster has been increasingly used to block nominees. Senate Leaders McConnell and Charles E. Schumer (D-N.Y.) alone have each changed their position on nominee filibusters no fewer than three times in the last 13 years.
The day before the Senate rejected Bork’s nomination in 1987, then-freshman Sen. Mitch McConnell quoted legal scholar Richard D. Friedman in urging Democrats to reconsider their opposition.
“‘A senator should have some humility in opposing a Supreme Court nomination on ideological grounds,’” McConnell said. “‘More than in the case of most major public issues, there is a strong possibility that he will later rue his action.’”
Yet it was McConnell who would not give a hearing — much less a vote — to President Obama’s Supreme Court nominee Merrick Garland in 2016, arguing the Senate should not consider a Supreme Court nominee in a presidential election year (since 1912, the Senate had confirmed six justices in presidential election years).
Now the Senate is set to consider a nominee to replace the last Supreme Court justice to be unanimously confirmed, no less one confirmed during a presidential election year of a lame-duck president.