Yesterday, the United States Senate voted to end the judicial filibuster. This is being treated as news, or some sort of sea change. Let’s be very clear that it is nothing of the kind. The so-called “nuclear option” was already the de facto state of affairs. The only thing that this “change” signifies is the death rattle of Senate comity.
To be clear, while this is an official enough change on paper, the simple fact is that there was no circumstance in which the Republican Senate majority under Mitch McConnell would not have taken this step eventually. The stolen Supreme Court seat was the prize the Republicans had won for years of intransigence, after all, and McConnell wouldn’t dream of allowing the Court to slip to the left or, dare we say it, become a body capable of actual deliberation on politically charged issues.
The truly ridiculous thing in this whole sorry state of affairs is not that the move was made – there is no 60-vote requirement for the confirmation of Supreme Court Justices, it’s just an aberration of the system that we believe that to be the case. It’s that Republican defenders of the move are painting it as the sorry consequence of Harry Reid’s earlier move in 2013, or – as John McCain did – protesting that the Democrats forced the “nuclear option.” This one’s particularly rich, since the protest boils down to “we had to take the power away, because they were using it. It’s a thing we need in our democracy, but not if it’s going to be used by Democrats.”
The distinction between the earlier “nuke” of 2013 and what has occurred this week is that the Supreme Court was not facing the kind of massive, systematic stress that lower-court judicial vacancies cause. If anything, the 8-member Supreme Court should, in a perfect world, become an even more deliberative body, where sincere legal debate results in 5-3 decisions rather than the loaded-bench expectations of a politicized court. Both sides have a measure of uncertainty in an evenly split court, as a 4-4 decision upholds the lower court’s finding and means that, in a state of total partisanship, the balanced Supreme Court does not swing a political gavel. Cases from both the left and right that come to a split court leave the same way that they entered, unless actual debate broke free of ideology and made the legal case for a more concrete decision.
It’s not like many people believed there was more than a shred of Senate comity left in the joint. For years we’ve seen examples of the escalating lines of contempt and vituperation battling in the upper house of the nation’s legislature. The leading voices in the majority for sense, stability and dignity are old men toeing the party line to secure “victories” for their party’s platform and ensure their own continued employment in the Senate. When the Senate Majority atrophies into an organ of the party line, it’s no wonder that comity is dead. What remains is the zombie of a legislative body, moved by political consultants’ latest transparent lies to pretend at being a functioning deliberative group. Does anyone really buy that, had Justice Scalia died a month earlier, Mitch McConnell would have said “well, it’s not the last year of your Presidency, so we’ll let you pick your new judge.” Two months? No. Of course not. There would always have been some flimsy justification to serve as the face for rank political opportunism and partisanship.
So where do things go from here? It’s not hard to imagine that there are repercussions to this move. The next Democratic president might decide to resurrect Roosevelt’s court-packing scheme. There’s no law defining the Supreme Court as a nine-member bench, after all. Is that a desirable outcome? No, it’s not, but it’s clear that James Madison’s designs that “ambition must be made to counteract ambition” have been ruthlessly ripped to shreds by the two-party system and its backers, to the detriment of American governance and jurisprudence both. When the Supreme Court is little more than a facilitative organ for favorable political outcomes, its stated role in the system of checks and balances ceases to exist. A politicized body cannot reasonably serve as a check against the agents which have so politicized it.
Ultimately, there’s little meaning to assigning blame in this matter. The “nuclear option” was always going to happen eventually as partisanship escalated, and both parties have a hand in that occurring. All that we can hope for now is that the resulting bench does not do irreparable harm to the state of American governance. That it will do harm to countless Americans on a personal level is, at this point, a fait accompli.