Gaming Out the Nuclear Option

By Professor Carolyn Shapiro

Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Today, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I’m not alone in thinking about unintended consequences here. Nate Silver of has an extensive piece today about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

In contrast, the Democratic nominees during this timeframe – Ginsburg, Breyer, Sotomayor, and Kagan – were all seen as varying degrees of moderate liberal at the time they were nominated. You don’t have to take my word for this. Relying on data from the venerable Supreme Court Compendium, University of Chicago Law Professor Geoffrey Stone has ranked the nominees (through Kagan) by perceived intensity of ideology at the time of nomination. Except for Souter and Kennedy, all Republican nominees in the past 35 years have more intense ideological preferences than all Democratic nominees in the same timeframe.

And nominating a moderate did not help President Obama in the fight over the vacancy left by Justice Scalia’s death. President Obama’s pick, Judge Merrick Garland, was anything but an extreme nominee. Indeed, only a week before his nomination, Senator Orrin Hatch predicted that Obama would not nominate Garland, whom Hatch had previously praised as worthy of bipartisan support, because he was too moderate, and some progressive groups were disappointed by the nomination. Given that context, the Republican refusal to even consider Garland was and remains particularly infuriating to Democrats. As a result, one lesson Democrats might reasonably draw from the Garland nomination is that there is no Democratic nominee moderate enough (or old enough – Garland was in his 60s, quite old for a lifetime appointment) to be confirmed by a Republican Senate.[1] This lesson may resonate all the more because the Garland nomination was the first since before Brown v. Board of Education was decided in 1954 in which a Democratic president’s nominee was made to a Republican-controlled Senate. In other words, there is no history of a Republican-controlled Senate confirming moderate Democratic nominees.

Contrast this Republican treatment of Garland to the treatment Democratic-controlled Senates have given Republican SCOTUS nominees. Since 1954, Democratic Senates have confirmed numerous Republican appointees, including the conservative Burger, Rehnquist (when appointed as Associate Justice), Kennedy, and Thomas. Democratic Senates also confirmed Souter, Stevens, Powell, Blackmun, and President Eisenhower’s four post-­Brown nominees. That’s twelve confirmations. And until today, the Democrats have never filibustered a Republican nominee. Republicans like to complain about Bork, who was narrowly defeated by a Democratic Senate. But as this list makes clear, Bork’s defeat was unusual. And it happened because he was himself unusual in his extreme positions and rigid readings of the Constitution.

Finally, it’s worth noting just how rare Democratic Supreme Court appointees have been in the last half-century. In 1967, President Johnson successfully nominated Thurgood Marshall to the Supreme Court. No justice was nominated by a Democratic president for another 26 years, until President Clinton nominated Justice Ginsburg in 1993, followed by Justice Breyer in 1994. The most recent two Justices to join the Court – Justices Sotomayor and Kagan – were appointed by President Obama. That is it – five appointments in 50 years. In contrast, during the same time period, Republican presidents successfully appointed eleven Justices and additionally successfully elevated Rehnquist from Associate to Chief Justice.[2] With the pending confirmation of Justice Gorsuch, the Republican tally will increase to twelve – with Democrats still steaming over the treatment of Garland.

The point here is that despite Republican complaints that Democrats have been waging “scorched-earth ideological wars” over judicial nominees, at least during the past 35 years, Republicans have been more aggressive in trying to appoint ideologically extreme Supreme Court justices. Pushing such appointments – and eliminating the filibuster to get the latest one through – while refusing to even consider a moderate nominee by President Obama removes many of the incentives for Democrats to nominate moderates when they control both the Senate and the Presidency. When it comes to selecting new members of the Supreme Court, we should expect future Democratic presidents and Democratic-controlled Senates to act more like Republicans have been acting, resulting in more liberal appointments. (It also may, for the first time, lead Democratic voters to focus as much on the Supreme Court as Republican voters do, although this may be wishful thinking.) But the bottom line is that in the long run, Republicans may live to regret the nuclear option.

[1] There are of course other factors here. The fact that a Democratic nominee to replace Scalia would have a dramatic effect on the overall ideological balance of the Court surely played a role in encouraging Republican opposition. And Republicans also argue, for example, that some Democrats had themselves proposed a moratorium on SCOTUS nominations during a presidential election season.

[2] The Republican-appointed justices are Burger, Blackmun, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Roberts, and Alito. We can also go back to Brown, since that is a timeframe I use elsewhere in this post. Since Brown, and not including Gorsuch, Republican presidents have successfully nominated fifteen justices, and Democrats have successfully nominated eight. The additional Republican appointees are Harlan, Brennan, Whittaker, and Stewart, while the Democratic appointees are White, Goldberg and Fortas.

This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on April 6, 2017.

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