//  4/10/17  //  Commentary

Perhaps it was inevitable. In response to Democratic Senators' filibuster of Neil Gorsuch’s nomination to the Supreme Court, Senate Republicans changed the rules.  On a straight party-line vote, the Senate eliminated the filibuster for Supreme Court nominees.  The next day, the Senate confirmed Neil Gorsuch to fill the associate justice position created by Justice Scalia’s death.  Thus ends an especially bitter chapter in the decades-long partisan conflict over federal judicial nominations.  But its reverberations will be felt for many years to come.

The most obvious consequence is that Judge Gorsuch is now Justice Gorsuch.  He once said that a “judge who likes every outcome he reaches is very likely a bad judge.”  By that definition, he was a bad judge and will probably be a bad justice.

Judge Gorsuch’s record on the Tenth Circuit was that of a conservative ideologue, as amply documented during his confirmation hearing. He routinely sided with the Goliaths and against the Davids of this country, including workers who were treated unfairly, children with disabilities, victims of police misconduct, and women in need of contraception.  His rulings on the Tenth Circuit hurt the “forgotten people of this country” whom President Trump promised to help in his inaugural address.  I thus share the concerns about him expressed by Senate Democrats, all but three of whom voted against his confirmation.

That said, I don’t think it was wise for Senate Democrats to filibuster the Gorsuch nomination.  There were both principled and pragmatic reasons not to filibuster, even if one believes that he will be a bad justice.  The principle is that the standard for voting to confirm federal judicial nominees shouldn’t be the same as the standard for allowing a vote on their confirmation.  That, after all, is the argument that Democrats made for the many months during which Republicans inexcusably failed to hold a hearing on President Obama’s nominee, Judge Merrick Garland.  Filibusters should be reserved for extraordinary circumstances, such as a nominee who lacks the integrity or capacity to serve.  It’s true that Republicans routinely abused the filibuster to deny up-or-down votes to many qualified federal judicial nominees.  But two wrongs don’t make a right, even when they follow dozens of others.

The practical consequences of Senate Democrats’ decision to filibuster are even more troubling.  With the filibuster gone, they will have no ability to stop future Supreme Court nominees as long as they are in the minority.  The most frightening possibility is that President Trump will have the opportunity to name a replacement for Justice Kennedy or one of the four more liberal justices on the Court. 

Of course, one can’t be sure that Democrats would have been able to stop such a future nomination even if the filibuster were still in place for Supreme Court nominations.  But had they held their powder on Gorsuch, they would at least have given themselves a chance, as Rick Hasen has noted.  Now, there’s nothing Senate Democrats can do if someone in the Gorsuch mold is nominated to replace Justice Ginsburg or Breyer, in the unfortunate event that one of them dies or must step down for health reasons.

Why then did Senate Democrats filibuster the Gorsuch nomination?  They had to know it was a lost cause, one with potentially devastating long-term consequences.  The answer, I think, lies in the incentives created by the hyperpolarization of American politics addressed in my previous post.  And the challenge it reveals is one that threatens the very survival of our democracy.

The decades-long divergence of views among Republican and Democratic members of Congress is well-documented, as is the political dysfunction arising from it.  But partisan polarization is asymmetric, with Republicans moving further to the right than Democrats have to the left, as Tom Mann and Norm Ornstein observed several years ago.   A more recent book by Matt Grossman and David Hopkins makes a strong case that this “asymmetric polarization” arises from a core difference between the two major parties and their adherents.  In simple terms, ideological solidarity is central to the Republican Party, while the Democratic Party is defined by coalitions among disparate interest groups.

This helps explain why conservatives have been so active – and effective – in judicial nomination fights over the years, supporting judges who share their ideology and opposing those who don’t.  Recent events, particularly the Garland nomination and the abysmal treatment of President Obama’s lower court nominees which preceded it, appear to have triggered a comparable solidarity among Democrats.  A vocal coalition of progressive groups vigorously opposed the Gorsuch nomination, pressuring Senate Democrats to support the filibuster.  This put Democrats aware of its consequences in a difficult position.  That was most clearly evident in an audio recording of Senator Claire McCaskill, in which she warned a group of Democratic donors about the potentially harmful consequences of blocking Gorsuch.  Yet Senator McCaskill (who is up for reelection next year) wound up joining the filibuster, perhaps concerned about the potential fallout from alienating her base.  

Senate Democrats were undoubtedly thinking about next election when they voted on the Gorsuch nomination. They’ve taken a page from the playbook of their Republican counterparts.  Remember then-Minority Leader Mitch McConnell’s statement that his top priority was “for President Obama to be a one-term president”?  Guided by that objective, Congressional Republicans consistently opposed virtually every major initiative of the Obama Administration from legislation to foreign policy to judicial nominations.  They were rewarded by electoral victories in the 2010 and 2014 midterms, as well as the 2016 presidential election.  This experience suggests that it’s good electoral politics to for the out-of-power party to oppose the sitting President on everything.  (In fact, there’s already some evidence that this may be a good electoral strategy for Democrats in 2018.)  This may partly explain why almost all Senate Democrats joined the Gorsuch filibuster, despite being aware of its potentially negative long-term consequences.

My point isn’t to cast blame on the Democrats who joined the filibuster or the Republicans who ended it, although there’s plenty to go around.  It is instead to demonstrate how the incentives that those in both parties now face contribute to the political dysfunction so widely recognized by careful observers of American politics.  The intensification of the judicial confirmation wars, moreover, will surely have long-term consequences on our federal judicial system.  It has become increasingly likely that only those at the ideological extremes will be nominated and confirmed.  And that development will have negative repercussions for the rule of law, a pillar of constitutional democracy.  Public faith in the judiciary will in turn suffer, if law is seen as nothing more than politics by another name.

The Gorsuch nomination battle thus illustrates and exacerbates the dynamics of democratic deterioration.  Reversing these dynamics will require elected officials to act with courage, sometimes doing some things that are unpopular with their base.  It will require out-of-power Democrats to try to find some common ground with President Trump even though it’s contrary to their short-term electoral interests.  Health care and infrastructure legislation are two places where such a compromise might be possible.  It will also require structural changes to our political system, to alter the incentives that keep pushing our elected leaders toward increasing partisan polarization and legislative dysfunction . . . a subject for future posts.   


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