The Nuclear Option

Yesterday, Neil Gorsuch was confirmed as the new Supreme Court Justice by the US Senate. It is not for me to comment on the abilities of Judge Gorsuch. Suffice it to say he was nominated by President Trump for his reputation as a strict constructionist of the Constitution and his conservative judicial record.

The Supreme Court, often referred to as the least dangerous branch of the U. S. government, is supposedly politically impartial, often judging cases solely on the issue of constitutionality. But the Court has gone through phases of pro and anti-business, and individual versus corporate priorities. In the 1930s, the Court ran roughshod through Roosevelt’s first New Deal legislation. Twenty years later, the Warren Court ruled in favour of liberality, for example in Brown v Board of Education, when America’s public schools were desegregated.

Before Gorsuch’s confirmation, and with the death of Justice Scalia, the Court was equally divided between liberal and conservative Justices. Now, the right wing of the Court will enjoy majority, which might be helpful to a President whose programmes include a desire to rid the country of many environmental regulations and moves to restrict entry to the country on religious grounds. A right wing Court may well find that narrow corporate profit interests overrule the physical health and safety of the nation. 

What is of immediate concern to me is the legislative process that won Gorsuch his seat. Senate floor procedure is governed by a set of standing rules and a body of precedents created by presiding officers and votes of the Senate. In other words, the Senate has always made its own rules. Until yesterday individual Senators had the right to unlimited debate and Senators used this right to extend debate and delay action, a tactic known as a “filibuster.” Just the threat of a filibuster was often used to extract concessions from the Senate leadership.

At this week’s confirmation hearing, the Democrats started a filibuster to frustrate and hopefully defeat Gorsuch’s appointment. Senate rules provide that a filibuster can be ended by a cloture motion, where a three fifths majority, in this case 60 votes, are needed. The Republicans did not have the sixty votes, so with a light-footed piece of theatre, Mitch McConnell, the majority leader, called for a rule change, the so-called “nuclear option.” It worked. The Senate voted on party lines, 52-48, to make the change.

The filibuster no longer applies to any judicial appointments. Indeed, Gorsuch was swiftly in an “up and down vote,” i.e. a simple majority. What if the Democrats seek to filibuster approval of a treaty which they regard as adverse to American interests or new healthcare legislation even more restrictive to the middle class than the previous effort? Will the Senate Republicans change the rules to get these issues done?

In the process of ramming through Gorsuch’s appointment, the Republicans have probably ensured that the Court will be seen less as the interpreter of the Constitution and more as just another partisan political, unelected legislative body. I fear the Supreme Court is collateral damage in the fierce, political fight to the death between America’s political parties in Congress.

The framers of the Constitution feared government by mere majority vote. They worried that a demagogue might overwhelm minority rights and plain common sense, using bare majorities to force laws through. Under the Constitution as originally passed, the members of the House of Representatives were elected by the people but neither the President, nor members of the Senate, nor the Supreme Court Justices were. The Founders just did not trust the people.

Here in U.K., warring political parties in the House of Commons, whose behaviour is often beyond the pale, usually end their fights with the government prevailing. Watch Prime Minister’s question time. The politicians heckle and jeer across the divide like a badly behaved mob. The government’s parliamentary majority virtually guarantees total control of its agenda. The whipping system ensuring party loyalty works. The minority party might be loud but it is powerless.

The Founding Fathers considered the way European governments operated and decided they wanted no monarchy nor rule by simple majority. The Federalist Papers, a contemporary account of the discussions leading to the Constitution, bears this out. The Framers purposely made it impossible for ruling factions to ram laws through. Instead, there would have to be consensus.

After yesterday, the Republicans have changed the nature of America’s government and its special character. Congressional Republicans will rule by simple majority, without having to worry about a vociferous minority, and will claim that this is how democracy works. The Supreme Court will be diminished because its members will be appointed by a partisan political majority. And be in no doubt that if and when the Democrats gain control of Congress, they will not return to the old Senate rules. They will be just as partisan as their political foes. The losers are the Congressional moderates on both sides of the aisle whose voices will be muted and the American people, most of whom will be sacrificed in the name of ideology.