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Senate Republicans nuke the SCOTUS filibuster

Supreme Court Justice Neil Gorsuch is about to become a reality

Matthew Vadum author image /

Senate Majority Leader Mitch McConnell delivered on a key Trump campaign promise yesterday, brushing away an arcane procedural hurdle and in the process clearing the way for the swift Senate confirmation of originalist Supreme Court nominee Neil Gorsuch.

It is also the first in what promises to be a long series of crushing major defeats for Democrats in the current Congress who are desperate to placate their increasingly rabid far left-wing base.

The “nuking” of the filibuster rule yesterday bodes well for President Trump’s agenda. Trump is in a good position to remake the Supreme Court because so many of its members are elderly and are likely to vacate their seats over Trump’s four- or eight-year presidency. Three of the current eight justices are of retirement age. Left-wing Clinton appointees Ruth Bader Ginsburg and Stephen Breyer are 84 and 78, respectively. Swing vote and occasional conservative Anthony Kennedy, who is 80, was appointed by President Reagan.

The senior Kentucky senator led the way as Senate Republicans invoked the so-called nuclear option yesterday, voting 52 to 48 along party lines to abolish the filibuster for nominations to the Supreme Court. Rule changes supposedly require a supermajority vote – 67 senators voting aye – in the Senate but four years ago under then-Senate Majority Leader Harry Reid (D-Nev.) the supermajority requirement was ignored and filibusters were disallowed for all judicial nominees below the Supreme Court. Lowering the 67-vote requirement to that of a simple majority is the so-called nuclear option, also known as the constitutional option.

(Editor’s update: NPR reported at 2:47 p.m. Eastern today that the Senate has confirmed 49-year-old Gorsuch as “the 113th justice to serve on the nation’s highest court.” The vote on confirmation was 54 to 45. Gorsuch will assume office on Monday. “Chief Justice John Roberts will administer the constitutional oath in a private ceremony at the Supreme Court. Later in the day, Justice Anthony Kennedy, for whom Gorsuch once clerked, will administer the judicial oath in a ceremony at the White House.”)

Although there was never a formal requirement that a Supreme Court nominee had to garner 60 votes to be confirmed, Democrats’ insistence that one had to be observed forced McConnell’s hand. The matter is now settled. Going forward, high court nominees, including Gorsuch, will need only a simple majority of senators to be confirmed.

It needs to be pointed out that the filibuster is entirely a creation of the Senate. The Constitution is silent on the matter. For those not versed in parliamentary arcana, under Senate rules any member is entitled to filibuster, that is, talk a bill to death or prolong debate indefinitely to prevent a matter from being voted on. A filibuster may be ended only if enough senators vote to invoke “cloture,” that is, vote to cut off debate.

McConnell denounced Democrats’ move to filibuster Gorsuch, saying it was part of a “much larger story” wherein the Left has been trying to politicize the judiciary and the confirmation process for years.

“It’s a fight they have waged for decades with a singular aim, securing raw power no matter the cost to the country or the institution,” he said on the floor of the Senate. “It underlies why this threatened filibuster cannot be allowed to succeed.”

Minority Leader Chuck Schumer (D-N.Y.) whined on cue about Judge Gorsuch for the media.

“Far from being the kind of mainstream candidate for the Supreme Court that could earn 60 votes, he may very well turn out to be one of the most conservative justices on the bench,” Schumer said.

“The nuclear option means the end of a long history of consensus” on high court nominees, he said. The 60-vote threshold served as a “guardrail” against judicial extremism, said the senator who expressly endorses judicial extremism and activism if it advances the twisted agenda of the Left.

This idea that a Supreme Court nominee must receive 60 votes in the Senate to overcome a filibuster is ridiculous. Six Supreme Court nominees, including two members of the current high court – Justices Samuel Alito and Clarence Thomas – have been confirmed with fewer than 60 votes.

Democrats, still dazed after being devastated at the polls in November, had been complaining with increasing intensity in recent weeks that Republicans somehow “stole” the Scalia-Gorsuch court seat because they refused to advance Obama nominee Merrick Garland, a garden-variety judicial left-winger, last year. Republicans counter that the Constitution’s requirement that the Senate provide “advice and consent” on certain presidential nominations does not mean the Senate is necessarily required to do the president’s bidding.

In the end, this is a case of Democrats finally reaping what they have sown.

They’re the ones who ushered in the era of scorched-earth judicial nominations with their character assassination of Supreme Court nominees Robert Bork in 1987 and Clarence Thomas in 1991. And they blocked George W. Bush’s judicial nominees with impunity and relish including the eminently qualified Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit in 2003.

The change in the filibuster rule was a long time coming and it is an outgrowth of Barack Obama’s destructive legacy. He left his party at its weakest in a century, reduced to a regional rump of coastal elites, machine politicians, and burnt out labor leaders who reminisce about the good old days.

Now it’s time for Democrats to sweat.

This article first appeared at FrontPageMag.