A mass amnesia has fallen upon Republican senators.
They seem to have forgotten about that time they refused to give President Obama’s nominee for the Supreme Court an up-or-down vote – or even a hearing – last year. Now they are claiming that Democrats are the norm-breakers for threatening to filibuster President Trump’s own Supreme Court nominee, Neil Gorsuch.
Republicans are in a full-scale pressure campaign to convince 41 Democrats not to vote against invoking “cloture” on the debate over Gorsuch, which would prevent him from moving to a floor vote, where he would need only a simple majority to be confirmed. GOP leaders have suggested, if that occurred, they would move to “nuke” the filibuster on Supreme Court nominees.
They’re correct in that typically a cloture vote is not called for a Supreme Court nominees, having occurred only four times in the modern era, according to the Washington Post. Most nominees were able to go directly from committee to an up-or-down simple majority vote on the Senate floor. Democrats’ current rhetoric about a 60-vote standard is a twisting of how things have usually happened.
But Republicans are wrong that Democrats are somehow entering new territory that wasn’t previously broken by the GOP’s blockade of Merrick Garland, the judge put forward by President Obama to replace the late Justice Scalia, whose seat will now likely be filled by Gorsuch.
On the dubious argument that a Supreme Court vacancy that opens in a presidential campaign year should be filled by whomever wins the election, Republican senators, led by Majority Leader Mitch McConnell (R-KY), refused to even move forward with confirmation hearings. Many Republicans wouldn’t even agree to meet with Garland, the usual first step in the formal and highly scripted process. It was an outright power grab — and one that worked.
Without irony or self-awareness, GOP senators are now bashing Democrats for preparing to launch “the first partisan filibuster” of a Supreme Court nominee and most aren’t even acknowledging that their blockade achieved the same goal through different means. They have plenty of ammo when it comes to touting Gorsuch’s qualifications and temperament, and yet they haven’t resisted making a process argument that claims a “moral high ground” when it comes to confirming nominees of another party.
McConnell, in the first week of the new Congress, said with a straight face that “the American people simply will not tolerate” Democratic efforts to block Gorsuch.
And he hasn’t backed down from arguing that Democrats are doing something materially different than what Republicans did under Obama.
This argument focuses on procedural hair-splitting. The efforts of a bipartisan group of senators has sunk at least one nominee, Judge Abe Fortas, and a few other times, nominees had to first pass a 60-vote cloture vote before being confirmed by the majority. Democrats previously attempted a partisan filibuster of Justice Samuel Alito, but fell well short. But no nominee, so far, has faced the level of obstruction that Republicans waged against Garland.
McConnell is not the only Republican acting like Democrats are unprecedented breakers of Senate confirmation norms.
At Gorsuch’s confirmation hearings, Sen. Thom Tillis (R-NC) browbeat Democrats for their tough questioning of the judge, while pointing out that Republicans confirmed the Obama nominees who were not named Garland.
“On Kagan and on Sotomayor, Republicans respected the president’s authority to appoint a Supreme Court justice, and Republicans did the right thing by moving forward and allowing the confirmation,” he said. “So I think that we have a moral high ground here that my colleagues on the other side of the aisle should take note of.”
Sen. Ted Cruz (R-TX), likewise, said that Gorsuch had a “super legitimacy” because he was chosen by the candidate who won the 2016 presidential election, overlooking that the President that nominated Garland won two elections of his own and obstructing his final Supreme Court pick allowed for the nomination of Gorsuch in the first place.
With a floor vote on Gorsuch set for next week, the full Republican conference is engaged in a public campaign to discourage a Democratic filibuster. Senator after senator has taken to the chamber floor to decry the prospect of a “partisan filibuster,” with only a few even attempting to explain how their blockade of Garland was, on a consequence level, any different.
“It really is unprecedented what the Democratic leader, Senator Schumer, has suggested: that for the first time in the history of the United States Senate, a partisan filibuster will be used to attempt to defeat the nomination of a Supreme Court justice and to deny the Senate the opportunity to have an up-or-down vote,” Sen. John Cornyn (R-TX), the majority whip, said in a floor speech Wednesday.
Sen. Rob Portman (R-OH) raised the partisan filibuster claim to “urge my colleagues to give Judge Gorsuch a chance.”
Sen. David Perdue (R-GA) remarked that it was “so important — and this body has historically treated it in such a solemn manner — that in over 230 years of our history, no nominee to the United States Supreme Court has ever been denied a seat through the use of a partisan filibuster.” He didn’t mention nominees denied seats because they weren’t given a hearing in committee.
“Unfortunately right now, members, colleagues from the other side of the aisle are threatening that very precedent,” Perdue said.
Sen. James Lankford (R-OK) said he “would hope” that “step up and do a process that’s been consistent with this country for the last 230 years of how we process through judges.”
“That is, we have an up-or-down vote, they’re not blocked by a cloture vote to try to keep them from getting to a final vote. The judges here get an up-or-down vote. That’s the way that we’ve done it,” Lankford said.
Just a handful of Republicans have acknowledged the awkward position their treatment of Garland has put them in, and bothered to address why what Democrats are doing now is different.
Sen. Lindsey Graham (R-SC), a press conference Wednesday, called Garland an “incredibly qualified man” who was a “victim of nothing other than the Biden rule,” referencing a 1992 floor speech then Sen. Joe Biden arguing hypothetically President George W. Bush should refrain from naming a Supreme Court nominee in an election year unless that nominee was a moderate.
But a year ago, after Republicans committed to blocking whomever Obama nominated to replace Scalia, Graham admitted they were setting a “new precedent.”
“We are setting a precedent today. That in the last year of a lame-duck eight-year term that you cannot fill a vacancy in the Supreme Court,” Graham said at a Judiciary Committee meeting then. “Based on what we’re doing here today. That’s going to be the new rule.”