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.”
Now with the Gorsuch nomination there is another round of largely fruitless argument about the standards that Senators should use in advising and consenting on Supreme Court nominations – – or whether they should simply refuse to consent at all. It goes like this: each party has an obligation to put up for a vote or even consent to the confirmation of a nominee whose views are “mainstream.” The only exception is an election year, or so now say the Republicans to defend their refusal to take up the Garland nomination. This alleged election-year proviso has turned into volleys of “you did it, too”/ “no I did not,” with the Republicans implausibly insisting that they only refused to consider Judge Garland because they were exquisitely sensitive to an election-year precedent they claim that Joe Biden established.
Other than in an election year, and when the qualifications of the nominee are unchallenged, the disagreement is then mostly redirected into one about what constitutes “mainstream.” Given the choice facing them, Senators are virtually compelled to split on this question. Because the true problem here, discussed only obliquely, is the extraordinary power and ambitions of the Court whose members may, and typically now do, serve for many decades. Elections must have consequences, as the saying goes, but it useful to retain some common sense grip on how far the point has to be taken. Each opposition party will be hard-pressed to accept that, with its generously provided "consent," a president can strive to recast the constitutional law of the land for the next generation and beyond. Acceptance may be harder if the opposition is smarting from a “stolen seat,” or if it is concerned that a nominee is too much of an ideologue, or if the Court's balance will be immediately "tilted," but it is enough that the appointment is for a lifetime.
It’s conceivable that there is someone somewhere available for nomination who both parties would believe to be reliably moderate in his or her views--a difference-splitter whose decisions would please progressives one day and conservatives the next. But neither party will most of the time be inclined to take the chance. The moderate today could turn out tomorrow to have preferences that run more consistently in one direction. It cannot be known for that matter whether in a decade or more the nominee’s jurisprudential disposition will shift or undergo major transformation.
To imagine that moderation suffices as a standard is also to ignore the probability that a president has campaigned on a promise to nominate a candidate with dependable jurisprudential or ideological commitments. The very reason that he or she is moved to make such a promise returns the argument to the fundamental issue: voters perceive that the Court has an outsized role in the resolution of major and highly contested issues--that it is activist on issues they care deeply about, whether or not the activism is inspired by originalism or belief in a living constitution. A president, but also political opponents, will balk at urging supporters to have faith in a nominee identified as moderate and just hope it turns out all right. There is no chance of persuading them to take Alexander Hamilton’s stated view of the Court’s “comparative weakness,” or to share in his confidence that impeachment would be available to correct a mistake.