Senate Democrat in 2013: Filibustering Judges is the 'Tyranny of the Minority'

Posted: Feb 28, 2017 10:25 AM

My, how times change. We've already seen one Democratic Senator express regret over jumping aboard the Reid Rule train, which directly empowered resurgent Republicans to confirm the 'most conservative' presidential cabinet in recent memory -- and will hopefully allow the GOP to confirm of Trump-appointed federal judges to fill dozens of existing vacancies (which ought to be an urgent priority, especially after Obama exploited Democrats' dramatic rule change to stack several circuit courts).  Now, America Rising reminds us of this comment from New Mexico Senator Tom Udall, who was a leading proponent of "filibuster reform" back in 2013:

"I think what our role is, is to step out there, advise and consent, and if we don't believe the person's qualified, if there's some real serious problem, vote against them. You remember Bork. He wasn't filibustered. He was voted down, 58 votes against him. People like Scalia, everybody says, oh, well, there are going to be more Scalias. Scalia passed unanimously. Ruth Bader Ginsburg on the Supreme Court passed with just three votes against her, 96-3. So the issue really is advice and consent, not with supermajorities. Right now, we have the tyranny of the minority. And that's what we have taken care of."

Does Udall stand by this standard, or has his appetite for tyranny suddenly returned?  Note well that he was discussing the filibuster in the context of Supreme Court nominees, not just lower court picks -- plus, his little history lesson is worth repeating and expanding upon. It's true that neither Robert Bork nor Antonin Scalia nor Ruth Bader Ginsburg faced filibusters. I'd add two more names to that list: Sonia Sotomayor and Elena Kagan.  President Obama added those two women to the Supreme Court in his first two years in office, following the retirements of Justices Souter and Stevens, respectively.  Neither was filibustered by Republicans, and each was comfortably confirmed.  President George W. Bush also installed two justices on the Court in 2005, the year after his re-election.  Both nominees were confirmed, although Justice Alito received fewer than 60 votes (a relevant statistic) following a failed filibuster attempt led by Senator Barack Obama, among others.  Going back a bit further, President Bill Clinton also selected two Supreme Court justices during his first term, both of whom were confirmed overwhelmingly, and one of whom (RBG) shifted the ideological composition of the Court. 

Why are these facts and context important?  First, Senate Democrats are in the process of determining whether or not they'll once again unilaterally escalate the confirmation wars by taking the unprecedented modern-era step of filibustering a majority-supported SCOTUS nominee appointed by a first-term or newly-reelected president.  If they choose to do so, Republicans must respond in-kind by either extending the Reid Rule to include Supreme Court appointments, or considering reviving the "two speech" precedent.  If I had to bet, Democrats will eventually relent on the Gorsuch nomination and decline to mount a filibuster.  This will inevitably infuriate large elements of their base, who are demanding total, unflinching "resistance."  Tactically speaking, however, Schumer and company may decide to wave Gorsuch through with token opposition, then dig in their heels over a potential second nomination.  If you believe Ted Cruz, that eventuality may be coming sooner rather than later:

On this score, I had a lengthy chat with someone with unique ties to the Supreme Court over the weekend.  Based on that discussion, I believe Cruz isn't just blowing smoke; a fresh retirement may very well be announced as soon as this coming summer.  For what it's worth, the whispers involve a (sometimes) right-leaning justice who is widely seen as the remaining "swing vote," and who will turn 81 years old in July.  If this happens, Democrats will likely raise several arguments to justify their efforts to prevent Trump from replacing Kennedy with a reliable constitutionalist: First, Trump already got to elevate a strong conservative to the Court in Gorsuch, so a filibuster isn't indicative reflexive obstructionism ("Judge Fill-in-the-blank is really trulyahem, 'extreme' this time").  Second, Gorsuch was a clean righty-for-righty trade, whereas altering the ideological balance of the Court is a very different story.  The counterpoints to both objections can be found in a simple review of recent history, which Sen. Udall began in the clip, and that we completed with more details above.  On the latter point, it should also be pointed out that Hillary Clinton explicitly promised to change the ideological make-up of the Supreme Court during the campaign, embracing a hard-left, ends-oriented set of criteria for selecting justices.  Trump beat her, largely thanks to conservative voters for whom the Court was a top issue.

If there is a second opening, Trump and Senate Republicans will have the constitution on their side, clear precedent established over the last three presidencies (including two Democratic administrations) on their side, and Senate Democrats' own Obama-era power grabs on their side.  Turnabout is fair play.  Evergreen parting thought: Ten Senate Democrats are up for re-election next year in states carried by Donald Trump, half of which the president won by at least 19 percentage points.  Here's the list, excluding Michigan:

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