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A New Justice Approved, An Old Rule Abolished

A New Justice Approved, An Old Rule Abolished
AP Photo/J. Scott Applewhite

Dear Reader —

Thursday night, Senate Republicans voted to “go nuclear,” breaking a Democratic filibuster of Neil Gorsuch’s confirmation to the Supreme Court — and ending the Senate filibuster of Supreme Court confirmations generally. Neil Gorsuch was promptly approved by the Senate this morning, making him the next associate justice of the Supreme Court, replacing the late Antonin Scalia. 

This does not come as a surprise. The proximate cause of the Republicans’ historic move was the Democrats’ decision to filibuster President Trump’s Supreme Court nominee with full knowledge that Mitch McConnell would use the so-called nuclear option. The Democrats’ decision, in turn, was retribution for the Republicans’ refusal to hold a vote for President Obama’s Supreme Court nominee, Merrick Garland, on the eve of last year’s presidential election. 

This series of events should be understood in historical context, according to Adam J. White of the Hoover Institution. Conservatives often point to the nomination of Clarence Thomas or the failed nomination of Robert Bork as the beginning of this tit-for-tat. One could go further back — as far as one hundred years, says White, to “the first really contested nomination, which was Louis Brandeis.” One thing is certain: Over the last several decades, Supreme Court nominations have become “one of the most hotly contested aspects of our government.”

Gorsuch, who is widely praised for his credentials, experience, and conciliatory manner, is an unlikely protagonist in this drama. While we do not know precisely how he will act as Justice, it is fair to say that Gorsuch, a conservative “originalist” and “textualist,” will restore the ideological balance that characterized the Court for most of President Obama’s tenure. Nevertheless, ending the filibuster will “significantly change the dynamic for future Supreme Court nominations.” 

Previously, the threat of a filibuster “force[d] presidents” to consider how to “secure confirmation of a nominee with more than just 50 votes.” This often produced nominees who could garner “broader support,” such as John Roberts or Stephen Breyer — or Neil Gorsuch. Without the filibuster threat, we’ll likely see “less moderate” and “more strident” candidates going forward, so long as the president knows he or she has the needed 51 votes in the Senate.

The result? Fewer parliamentary shenanigans over judicial confirmations, more political polarization on the bench. The Senate, meanwhile, is a little less beholden to the political minority — a win for majoritarian politics. Thus our government is one step closer to functioning like a “European-style parliament,” and one step further from that peculiar system envisioned by our Constitution.

These are some of the many issues taken up at RealClearPolicy over the past week. Below you will find just a few highlights.

— M. Anthony Mills, editor | RealClearPolicy


America’s Parliamentary Disaster. The Washington Post’s Robert J. Samuelson fears Congress is “quietly becoming a European-style parliament.” 

How Congress Used to Work. For Politico, Bruce Bartlett considers the historical origins of today’s congressional dysfunction.

The Constitution Doesn't Mean What You Think. Mary Sarah Bilder takes issue with originalist interpretations of the Constitution.

Democrats: Don’t Work with Trump on Trade. In RealClearPolicy, Jeffrey Kucik argues the president’s anti-trade stance is fundamentally at odds with core Democratic priorities.

The Dark Side of Cities. In The Week, Jeff Spross spotlights some negative effects of urbanization.

Yes, the Constitution Is a Legal Document. In Library of Law & Liberty, John O. McGinnis responds to Mary Sarah Bilder’s critique of originalism.

Trump Should Embrace Single-Payer Health Care. F.H. Buckley makes the case in the New York Post.

Single-Payer Health Care Is Not the Answer. In our own pages, Sean Speer urges GOP leaders not to heed calls for single-payer health care. 

How Judicial Confirmations Got So Contentious. Also in our pages, John R. Lott, Jr. contends judicial confirmations have become more contentious as the judiciary has grown more powerful.

Daschle on the Filibuster; White on Gorsuch. In the eleventh episode of RealClearPolitics’ podcast The First 100 Days, Bureau Chief Carl Cannon speaks with former Senate Majority Leader Tom Daschle about the role of the Senate filibuster. And RealClearPolicy editor M. Anthony Mills talks with the Hoover Institution’s Adam White about the legal impact Neil Gorsuch will have on the Supreme Court. 

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