An appellate judge on the 10th Circuit Court of Appeals, Neil Gorsuch, has been nominated to fill a vacancy at the Supreme Court. As a lawyer who was privileged to practice before both courts, I’ve keenly watched the process of his confirmation.
This process is framed by some history. Before 1987, the Senate usually confirmed whomever the president nominated. But then, President Ronald Reagan nominated Robert Bork.
Bork had been an acclaimed antitrust scholar and professor at Yale Law School. He had been the solicitor general where he handled dozens of Supreme Court cases. He also had served as an acting attorney general.
Chief Justice William Burger dubbed Bork “the most effective counsel to appear before the court” during Burger’s 17-year tenure.
Bork had been unanimously approved by the Senate for a judgeship on an appellate court. He had served there for the five years prior to his Supreme Court nomination. He was a preeminent jurist.
Within hours after Bork’s nomination, a politician who wanted to be president was on the Senate floor to deliver a bombastic and defamatory attack on him. The speech included this: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”
The politician and presidential hopeful who delivered that speech was Sen. Edward Kennedy. It was the second-ugliest thing Kennedy ever did.
That was only the beginning. The Dems pulled all the stops; they even published a list of the movies Bork rented from the local video rental store (which were all boring).
Historians agree that Kennedy’s speech and the Dems’ follow-up tactics were defamatory and scurrilous. But it worked. They defeated Bork.
Judge Bork died a few years ago. To this day, “Bork” is a colloquial verb. Google says it means “to obstruct someone, especially a candidate for public office, through systematic defamation or vilification.”
Perhaps wary of the demons they’d unleashed in the Bork hearings, the Senate later confirmed most Supreme Court nominees overwhelmingly. (A notable exception was the second black justice in history, Clarence Thomas, whom the Dems nearly succeeded in blocking.)
But something odd happened along the way. It was little-noticed at the time but proved important.
In the last year of George H.W. Bush’s presidency, the Dem chairman of the Senate Judicial Committee announced that if a Supreme Court vacancy were to occur, the Dem-controlled Senate would refuse to consider Bush’s replacement nominee. The rationale was that the replacement should be chosen by the next president, whom the chairman anticipated, correctly, would be a Dem.
That chairman was Joseph Biden, who went on to become vice president for President Barack Obama.
No vacancy occurred in the last year of Bush’s presidency, but one did occur in the last year of Obama’s presidency. By then, the GOP controlled the Senate.
Biden’s words came back to haunt the Dems. The GOP followed the “Biden Rule” by refusing to consider Obama’s nominee for replacement.
That brings us to President Trump’s nominee, Judge Gorsuch. Nine years ago, the Senate confirmed Gorsuch for his position on the appellate court unanimously. He’s been endorsed by Obama’s own solicitor general and numerous other prominent Dem lawyers and judges, and by everyone on the GOP side. In his confirmation hearing last month, he was obviously the smartest and most charming person in the room. He lives in Boulder, and likes to fish and ski. Whichever side you’re on, you can imagine him as a friend.
So the Dems are in a quandary. Their rabid base demands they “filibuster” Gorsuch — that they block a vote on him unless 60 of the 100 senators vote in favor of voting. Because the GOP has only 52 senators, that 60 would have to include eight Dems.
The filibuster has hardly ever been used against Supreme Court nominations, but it has been used by both parties for years to block lower court nominees. A law partner and friend of mine was filibustered seven times by the Dems.
In 2013, however, a Dem Senate abolished the filibuster for lower court nominees. That gave Obama carte blanche to fill judicial positions so long as the Dems held the Senate.
That wasn’t for long. As with the “Biden Rule” the Dems’ strategy in abolishing the filibuster for lower court nominees proved ill-timed. It was just before the GOP took the Senate in 2014 and then the presidency in 2016. And so now, the Dems have no ability to block Trump’s lower court nominations.
But the filibuster is still in place for Supreme Court nominations, and the Dems could use it to block a vote on Gorsuch.
Here’s where it gets interesting. The filibuster requires 60 votes to force a vote, but the filibuster itself can be abolished with only 51 votes. So the GOP can abolish the filibuster for Supreme Court nominees without any votes from the Dems.
What will the Dems do? Will they play to their base with a filibuster, and thereby egg the GOP into abolishing it for Supreme Court nominees just as they themselves abolished it for lower court nominees? If so, the Dems forfeit whatever leverage they may still have on future Supreme Court appointments by Trump — and there will probably be at least two.
If I were the GOP leadership, I know what I would tell the Dems: Make my day.
(Published April 2, 2017 in the Aspen Times at http://www.aspentimes.com/opinion/beaton-gop-to-filibustering-dems-make-my-day/ and elsewhere)