Fearful of the cost to the Senate’s institutional standing or just to “sane” strategic decision-making, commentators concerned about partisan filibusters and the invocation of the nuclear option are convinced that there is a better way for Senate Democrats. Let the Republicans have their vote, the argument goes, and the filibuster may survive for use in a later fight over a more controversial or unqualified nominee. Filibuster now but fail, when failure is assured, and when the nuclear option is invoked and the filibuster is gone, all defenses against future, extreme nominees will have collapsed. When it is over, the Senate will be the worse for it, a raw site of political conflict and power politics--more like the House, rather than the honorably deliberative body it is meant to be.
These objectives--the protection of the “unique” character of the Senate, and the construction of a smart Supreme Court nomination strategy--may in theory be consistent some of the time. But that is not necessarily case, and it is not clear why it is thought to be true here.
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.”
Here is a striking sentence in the Washington Post editorial calling for Senate Democrats to refrain from filibustering the Gorsuch nomination:
We are likely to disagree with Mr. Gorsuch on a variety of major legal questions. This is different from saying he is unfit to serve. He deserves the deference due any presidential nominee.The thought here is that “elections have consequences,” and presidents winning an election have a claim on some measure of deference to their nominees--all of them, including presidential nominees.
The problem is this: Judge Gorsuch is not just “any presidential nominee.” He is a nominee for the United State Supreme Court who could serve for four decades, or more, in this position of extraordinary power. It is possible to have the utmost regard for Judge Gorsuch or any Court nominee and question why, in the name of "deference," members of one party would readily yield on any such appointment to the president affiliated with the other.