WASHINGTON — It was the Republican talking point of the Sunday talk shows: If Democrats delay Neil Gorsuch’s confirmation to the Supreme Court this week, Republicans said, it would be an affront to history – the first time a nominee to the high court had been filibustered.
True? Only in a narrow sense. Partisanship has denied a Supreme Court seat to a number of nominees, most recently former President Barack Obama’s choice for the court last year.
Republicans are advancing their argument about historical precedent to try to soften the ground for a possible change in Senate rules to place Gorsuch on the court. If Republicans now in control of the Senate can’t get enough Democrats behind them – it takes 60 votes to end a filibuster – they may shift procedures to require only a simple majority of 51 votes. When then-majority Democrats made that switch for lower-level nominees, Republicans cried foul.
Some comments from the Sunday news programs and the larger historical perspective:
SENATE MAJORITY LEADER MITCH McCONNELL, R-Ky.: “No Supreme Court justice has ever, in the history of our country, been stopped by a partisan filibuster, ever.” “Fox News Sunday”
SEN. JOHN CORNYN, R-Texas: “This is unprecedented in American history, a partisan filibuster of a Supreme Court nominee.” – CBS’ “Face the Nation.”
THE FACTS: The senators are ignoring their blockade last year of Obama’s nomination of Merrick Garland to the same seat Gorsuch will occupy if he’s confirmed this week.
Obama nominated Garland more than a year ago but the Senate’s majority Republicans put him on ice, declining to give him a hearing. A filibuster is an unlimited debate that delays a vote, and technically not what stopped Garland. But in effect, Sen. Angus King, a Maine independent, said Sunday, the Garland nomination became the “granddaddy of filibusters.”
McConnell and Cornyn are correct in this sense: If Democrats were to succeed in blocking Gorsuch, it would be a first for the nomination of a judge to join the court. But one previous high court nomination was killed by a filibuster, in 1968. That’s when opponents of Supreme Court Justice Abe Fortas stopped him from being elevated to chief justice.
When McConnell and Cornyn said no one had been stopped by a “partisan filibuster,” they surely had that episode in mind. Fortas faced opposition from a coalition of Democrats and Republicans. So his ambitions were thwarted by a bipartisan filibuster.
It’s only been since 1949 that nominations have been subject to a potential supermajority requirement under Senate rules. In the 19th century, the Senate used procedural votes or took no action at all on 10 high court nominees who were thwarted. Most had been chosen by so-called accidental presidents – men who ascended to the White House after the death of a president and lacked strong support in Congress.
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