Bob Dole, a Republican from Kansas, was the Senate majority leader from 1985 to 1987 and 1995 to 1996 and the Republican nominee for president in 1996. Trent Lott, a Republican from Mississippi, was Senate majority leader from 1996 to 2001.
For weeks now we have heard the erroneous claim that Supreme Court nominees require 60 votes for Senate confirmation, rather than a simple majority. In reality, the Constitution and long-standing precedent require nothing of the kind. Now it is time to end the farce and call the roll.
Some have described abolishing filibusters for Supreme Court nominees as the “nuclear option,” a phrase first employed when Democrats were blocking President George W. Bush’s judicial nominees and the Republican leadership was ready to change the Senate’s rules to stop the obstruction. A more apt term might be the “Reid option,” as suggested by law professor Glenn Reynolds. It was then-Majority Leader Harry Reid, after all, who used this approach in 2013 to end filibusters for all executive-branch and judicial nominees below the Supreme Court. Or we could call it the “constitutional option,” since the Constitution provides that each house of Congress shall determine the rules of its proceedings, which the first Senate did by majority vote.
Whatever the label, if Democrats insist on denying Judge Neil Gorsuch the same up-or-down vote that Republicans gave to Elena Kagan and Sonia Sotomayor, it is time Senate Republicans dismissed the judicial filibuster for what it is today — a power play dressed up as inviolable tradition.
We have had the privilege of leading Republicans in the Senate, as majority and minority leaders. We love the United States Senate and the traditions, written and unwritten, of the world’s greatest deliberative body. But we have watched as Senate traditions have been steadily eroded, including the filibuster of Bush’s judicial nominees and the changing of the Senate rules to push through President Barack Obama’s lower-court nominees. Sadly, these short-term power plays are culminating in the current effort to deny an up-or-down vote to an utterly qualified nominee, who became a federal judge in the first place with the unanimous consent of the Senate.
The public believes Gorsuch deserves an up-or-down vote. Some senators have taken to saying that, sure, we’ll give him an up-or-down vote — just as soon as he gets the 60-vote supermajority to end a filibuster. In other words, we’ll hold him to a fair standard as soon we’re done applying an unfair one.
In fact, treating a 60-vote threshold as “standard” is not only unfair, it is also without historical precedent. As The Post fact-checker who examined this “slippery” claim documented, there have been only four cloture votes for Supreme Court nominees. In a 2005 Harvard Journal of Law & Public Policy article on the filibuster, two students of Senate history, Martin Gold and Dimple Gupta, pointed out that when the Senate changed its cloture rules to apply to all “debatable propositions” in 1949, nominations were swept into the new rule “by happenstance. The Senate debates include not a single mention of filibusters of nominations, likely because the concept was so alien to the Senate of 1949.”
Second, the Senate has never killed a Supreme Court nomination by filibuster. Key Democratic senators noted that they could have denied Clarence Thomas confirmation but did not believe it right not to give him an up-or-down vote. He was confirmed 52 to 48. (In 1968, Justice Abe Fortas withdrew his nomination for chief justice after one failed cloture vote because of bipartisan concerns over ethical lapses that raised serious issues about his character; it had nothing to do with the nominee’s ideology or politics.)
Third, Reid and other Senate Democrats showed no regard for this “standard” or the Senate’s filibuster tradition, real or imagined, in 2013.
So, for whatever our advice is worth, drawn from a combined 18 years as floor leaders: We support eliminating the pretense of a 60-vote “requirement.” In the hands of today’s Democrats, 60 votes assures defeat of future Republican presidential nominees. As their opposition to Gorsuch shows, no similar nominee could ever be confirmed if that “requirement” remains.