Finally, the U.S. Senate is doing its job. A year ago this month President Barack Obama did his job in nominating a replacement to fill the seat of the late Justice Antonin Scalia. Judge Merrick Garland was tapped to succeed Scalia. Constitutionally, the Senate has an “advise and consent” role intended to check the president’s power. A year ago, the Senate failed to act at all. Now it is doing so.
There is a lot of anger among Democrats about the way the Senate treated Judge Garland. Rather than accord him the usual respect of holding a confirmation hearing, debating his nomination and then voting, the Republican majority pretended that he did not exist, i.e. that no nomination had even been made. Then, they played the waiting game (one that lasted months and months) until Election Day when they hoped a Republican president would be elected.
That day came and the new president nominated Judge Neil Gorsuch to fill the vacancy. Then, Republicans expected Democrats to pretend the past year of ignoring the Garland nomination never happened. Rather, Republicans argued that Democrats should respect President Trump’s nominee, although ironically in a way the Republicans never respected President Obama’s.
It is not surprising that Democrats in the Senate Judiciary Committee hearings repeatedly have brought up what most Senate Republicans (including Utah’s two senators) did last year — disrespect a Supreme Court nominee in a manner that had not occurred since the 19th century. They want it noted that Republicans crossed a line that neither party should cross. They hoped the public would not forget that.
Now the question for Democrats is: What to do? The liberal activists in the party want a filibuster. They want revenge for what the Republicans did to Garland.
Many Senate Democrats, however, are not sure that is the best course. One reason is a filibuster would cause the Republicans to change the rules and end filibusters in the future. The rule change would allow Supreme Court nominees to be confirmed with a simple majority, which Republicans possess at this moment in time. These Democratic senators want to save their ammunition for a future Trump nominee who is likely to replace a more liberal justice than Scalia. They also worry that they lose the moral high ground when they do to the Republicans what the Republicans did to them.
My guess is there will be no filibuster, or at least not one that unites the Democratic caucus. Some Democrats may support a filibuster, but most will not do so. Not only will they conclude that the effort could backfire, but they also don’t want to engage in the same tactics as the Republicans.
That would be the proper course. As much as it may seem justified by Republican bad behavior over the past year, a tit for tat on Supreme Court nominations is not the best option for the future of the nomination process, the Senate or the court. Democrats would be well served by rising above that kind of behavior.
Judge Garland should have received an up or down vote. Republicans will be judged badly by history for playing politics with the nomination process and not at least voting on his nomination. Democrats will be judged badly if they filibuster Judge Gorsuch to exact revenge. Their unwillingness, so far, to do that means the nomination process may not deteriorate to a new low. That is good for the country.