There is bidding underway for the right to declare what is “precedent-shattering” in the votes ahead on the Gorsuch nomination. Democrats, The Wall Street Journal opines, may disregard institutional tradition by launching a full partisan filibuster. But the Republicans may answer with the nuclear option. In the one way or the other, there is the fear–or pretense–that ruin will have been brought to Senate practice.
But the process question is secondary, and only as important as what preceded it: the confirmation process. And that process is understood to have become a torpid affair. Whether it is characterized as “hollow” or, worse, “dishonest,” it now consists of a series of rituals with little substance. The process opens with the one-on-one “courtesy calls,” proceeds to public testimony supplemented by written questions and answers for the record, and then comes the predictable finale on the floor of the Senate. No one expects anything useful to come of any of it.
It is not realistic to hope that a nominee will embrace candor and risk a 40 or more year position on the most Supreme of all courts. And the party whose president made the nomination will not urge the prospective Justice to take that risk. It has gotten to the point that, with other few measures available, nominees are judged on personality characteristics on display during the testimony: “seems nice,” v. “too smug.”
Republicans have said that Judge Gorsuch is clearly qualified and if he does not make the grade, no one would. But if credentials are decisive, then, other than a demonstration of resume fraud, it is not clear what a reinvigorated, “honest” confirmation proceeding would add. Just as there is little merit to the appeal to “deference” to the president, there is no substance to this argument about qualifications. Qualifications are a minimum expectation. They entitle a nominee to serious consideration; they do not settle the next question of whether he or should be confirmed to serve for a good share of a lifetime on the Supreme Court.
If all this is correct, then the handwringing over the shattering of precedent is unnecessary. The question is: what is the reasonable expectation of parties when the nomination is for a lifetime appointment to a position of extraordinary power, and we can assume that there is, typically, no question of individual “qualification”? Each party will usually have every reason to push for its nominees, and against the other’s, in the struggle over the future direction of the Court; and this means that each will favor the procedure, the 60 vote threshold or the “nuclear option,” that is best calculated to yield the outcome that it wants.
The deal now being suggested–Democrats allow for a vote now, in return for a promise not to deploy the nuclear option later–is no less a procedural maneuver to maximize wins and minimize losses. Of course, the Republicans might consider it, in honor of J. Wellington Wimpy: “I’d gladly pay you Tuesday for a hamburger today.” If a win now is inevitable, why not make it less painful, with Democrats stepping aside, and make them an unenforceable offer to “pay them Tuesday?” But this all has little to do with the hoary bipartisan traditions of the Senate.