I am increasingly reluctant to write about political matters these days. Though politics used to be both my avocation and vocation, I’ve turned my attention and passion elsewhere in recent years. Further, as divided as we are, I resist contributing to that division.
So, when I blog on politics, I tend to do so as a political observer, scratching my head one day at the crazy waywardness of one side and then doing so with the other the next day.
Today I’m scratching my head over Chuck Schumer.
Now, I understand the Democrats’ upset at the Republican Senate’s refusal to consider President Obama’s nomination of Judge Garland. They had a point, though the strength of that point was diminished by comments from leading Democrats in the past that Republican nominations near the end of a presidential term should not be considered.
Further, I recognize that Democrats are very disappointed that the Clinton loss left them unable to fill this seat or any other that might open soon. Clearly, too, they don’t like the orientation of Judge Gorsuch.
Having noted all that, however, Schumer’s stated approach to the nomination is concerning and, ultimately, precedent setting in several damaging respects.
Schumer says the Democrats, for a variety of reasons, will filibuster the nomination of Judge Gorsuch. He argues – illogically – that a Supreme Court nominee should have to garner at least 60 votes, though, in this case, virtually none of them will come from Democrats.
This is a specious argument. Nominees in the past have been confirmed generally, but not always, with 60 votes because numerous Senators from the opposing party have tended to vote for nominees who, though of differing political philosophy, were qualified to serve on the Court.
For example, Justices Ginsburg and Breyer, though liberal, were approved respectively by votes of 96-3 and 87-9, winning considerable numbers of Republican votes. Justice Roberts was approved on a vote of 78-22, winning many Democratic votes.
Partisanship began to rear its head with the nomination of Alito by President Bush, and Sotomayer and Kagan by President Obama. But – and this is crucial for our situation – though Sotomayer and Kagan were easily as liberal as Gorsuch is conservative, there were no filibusters over their nominations. Further, Sotomayer won 9 Republican votes, and Kagan won 5 Republican votes.
If we’ve finally reached a stage where the minority party insists on filibustering a highly qualified person nominated by a president of the other party AND provides no or very few votes for that nominee, the way the new world will work is clear and likely ugly.
First, the majority party will use the nuclear option to prevent the use of the filibuster in the case of votes on Supreme Court nominees. And, second, virtually all the members of the majority party in the Senate will refuse to vote for a nominee of a President of the other party when the nominee inclines ideologically in the opposite direction of theirs.
Could this nightmare somehow work out well by forcing presidents to pick true moderates to the Court, if any such animals exist any longer in the political arena? That might be appealing to some, but it is highly unlikely.
More likely, we will reach yet a new and very serious stage of political gridlock in our nation, with Supreme Court seats going unfilled for lengthy periods of time, perhaps even until both the president and a majority of the Senate are of the same party. And, the constraints on them to resist going further out to the ideological edge in nominations will be fewer and weaker.
Think about it, Senator Schumer.