The Senate filibuster, which for decades
required that any major action first garner sixty votes, had long served to
protect the rights of the minority from an overbearing majority. But in 2013,
impatient at having Senate Republicans block some of then-President Obama’s
more extreme judicial nominees, Democrats led by Harry Reid changed the rules.
Most legislation and Supreme Court appointments would still require sixty
votes, but Cabinet and lower-court nominees would now only require fifty-one
votes.
In 2015, after regaining the majority,
Republicans decided to keep the new rules in place, with an eye toward easing
the confirmation process for the nominees of a new Republican president. And in
2016, when a Hillary Clinton victory looked almost assured, Democrats talked
openly of further changing Senate rules and doing away with the filibuster for
Supreme Court appointments.
It is likely that at least a few
moderate Democrats, up for reelection next year in red states, will ultimately
vote to confirm Neil Gorsuch to the Supreme Court, or at least vote to overcome
a filibuster. But whether Gorsuch can reach sixty votes is another question.
And if he cannot, the filibuster for Supreme Court nominees must be ended, to
allow him to be confirmed anyway.
The filibuster was once a valuable tool,
no matter the party in opposition. But it was seriously weakened by the
Democrats in 2013, and its time (at least for Court nominations) may finally
have come. If the choice is between keeping the filibuster and confirming a
principled constitutionalist to the Supreme Court, I say the Senate must do
everything possible to put Gorsuch on the Court.
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