Senate Republicans totally shirked their constitutional responsibility of advise and consent with Merrick Garland last year. The fact that they refused to hold confirmation hearings combined with the fact that a seat on the Supreme Court bench has been left open for almost a year now is both mind-boggling and utterly ridiculous. Garland was also one of the more qualified, moderate possible nominees and was confirmed to his current position—chief judge on the United States Court of Appeals for the District of Columbia Circuit—with support from a majority of Republicans. Now, after rightfully lambasting Mitch McConnell and other Republicans for the Garland debacle, Democrats are promising to filibuster President Trump’s nominee, whoever he/she may be.
Filibustering a Supreme Court nominee’s confirmation doesn’t happen often. In fact, it’s pretty rare. The last successful filibuster took place in the 1960’s, when Senate Republicans filibustered the nomination of Abe Fortas by Lyndon Johnson due to legitimate ethics concerns. Senate Democrats considered using the filibuster on Samuel Alito’s nomination, but ultimately decided against it.
This time around, regardless of what Chuck Schumer says, Senate Democrats are exercising their filibuster power as a vindictive response to Republican’s inaction on Garland. This has a few implications. First, abusing the filibuster could set a dangerous precedent where every SCOTUS nomination would require 60 votes for cloture in order to move to vote on confirmation in the future. That could mean future vacancies on the bench might not get filled considering the tall task of getting a supermajority of the Senate to overcome the filibuster. Given our polarized political climate, we could be looking at a 6- or 7-justice bench in the near future.
Second, using the filibuster could work actively against the interests of the Democratic Party. McConnell and other Republicans might be emboldened to utilize the nuclear option, doing away with the filibuster either entirely or only on Supreme Court nominations to push through Trump’s nominees. Democrats already exercised the nuclear option back in 2013 to get Obama’s lower level appointees confirmed, so the precedent exists. Though the tool has been abused in recent years, the filibuster serves an important purpose; getting rid of it would remove a critical bulwark against the power of the Senate majority, severely undermining the power of the minority party.
I think Democrats need to keep a couple of things in perspective. First, because they’ve set lofty standards for what a “confirmable” nominee looks like, it’s unlikely they’ll vote to confirm any of Trump’s potential nominees (with the possible exception of Thomas Hardiman) unless eight moderate Democrats break ranks and vote for cloture. That would keep Scalia’s seat on the bench vacant for the foreseeable future and continue to hamper the proper function of the Supreme Court. Second, no matter who gets nominated, it’s unlikely that that nominee will be more conservative than Justice Scalia. If Democrats did move to confirm that nominee, the Court’s ideological balance would return to what it was prior to Scalia’s death, which, while not ideal for the party, is something that Democrats have dealt with before and hardly a reason to use the filibuster.
It’s important not to confuse the filibuster with what Republicans did last year. Filibustering simply raises the vote threshold Trump’s nominee needs to cross from 51 to 60, the amount needed for cloture. Democrats haven’t (yet) refused to hold confirmation hearings. Republicans altogether refused to move forward with confirmation hearings on Garland because they (correctly) gambled that they could confirm a more conservative nominee under a Republican president. That being said, filibustering Trump’s nominee could ultimately be a dangerous move that works against both Democrats’ and the country’s interests.