Back To The Future: Senate “Nukes” The Judicial Filibuster

Back To The Future: Senate “Nukes” The Judicial Filibuster

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Judge Neil Gorsuch (Source: YouTube, PBS)
Judge Neil Gorsuch (Source: YouTube, PBS)

Republicans have successfully changed the Senate rules governing how federal judicial nominees are confirmed, voting 52-48 in favor of the rule change.  This rule change means that the judicial filibuster is dead.  “All future Supreme Court nominees can be confirmed with a simple majority vote and will no longer face a 60-vote hurdle.”

Bloomberg spins this as an “historic rule change”, which is misleading.  It is actually a return to the Senate’s regular operating procedure before 2003.

Prior to 2003, judicial filibusters did not exist.  Filibusters were reserved for budgetary battles.  In 2003, Democrats changed the Senate rules to allow for the judicial filibuster.  They did that for a political purpose to block George W. Bush’s lower court judicial appointments. Democrats invoked it again in 2013 for all federal judicial appointments, carving out an exception for Supreme Court nominees.

McConnell said Democrats’ move to filibuster Gorsuch is part of a “much larger story” in which the left is trying to politicize the courts and confirmations.

“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,” McConnell of Kentucky said on the Senate floor. “It underlies why this threatened filibuster cannot be allowed to succeed.”

Today Republicans have returned the judicial nomination process to the pre-2013 Senate Rules.

But that’s not stopping the Left from spinning this as some sort of constitutional violation. They are spitting mad that President Trump will be able to seat Neil Gorsuch and similarly conservative nominees onto the Supreme Court.  They characterize the Republicans as violating the rule of law when it is the Democrats who refuse to abide by rules, changing them in their favor.

Democrats said the power grab was made by the Republicans when they denied a hearing to Obama’s nominee last year. In addition, Gorsuch didn’t show himself to be a mainstream judge during his confirmation hearing at the Senate Judiciary Committee, Senate Minority Leader Chuck Schumer said.

“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,” said Schumer of New York.

“The nuclear option means the end of a long history of consensus” on high court nominees, he said. The 60-vote requirement acts as a “guardrail” against judicial extremism, Schumer said.

Schumer is correct.  The Democrats have been guilty of “judicial extremism for decades.  Today Republicans have returned the judicial nomination process to the pre-2013 Senate Rule of Law which will break the Democrats’ judicial extremism.  Going forward all judicial nominees can be confirmed on a simple majority vote, the way the Constitution intended it to be.

(Editor’s note: Conservative Firing Line owner Joe Newby discussed this issue with Rabbi Eric Walker earlier this week.  You can catch that interview below.)

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