Democrats’ Dilemma over the Federal Judiciary

Susan Sullivan Lagon | March 29, 2017

In all likelihood, Tenth Circuit Judge Neil Gorsuch will replace the late Justice Antonin Scalia on the Supreme Court. How he gets there is the question, not whether. If confirmed, Gorsuch will be a predictably conservative voice on the nation’s highest bench just like Scalia was. It’s the next vacancy that could shift the Court’s ideological balance, but how that vacancy is handled hinges on how Gorsuch’s nomination proceeds.

Here’s why: In the 113th Congress, Democrats were in the enviable position Republicans now enjoy of controlling the White House and both chambers of Congress. An influx of freshmen Democrats in the Senate who had come from the House grew impatient with the minority’s tactic of filibustering nominees. They urged then Majority Leader Harry Reid (D-NV) to lower the threshold for cloture (that is, invoking Senate Rule 22 to end a filibuster) from 60 votes to 51. Reid demurred because he knew Republicans would be outraged and he needed their support for President Obama’s massive stimulus package. By the second session, though, Reid had had enough and changed his mind after spending a year watching the minority filibuster routinely and exercise a virtual veto over much of his agenda–especially Obama’s judicial nominees.

Despite pleas from senior Democrats (including current Minority Leader Chuck Schumer (D-NY)) to reconsider, Reid used a parliamentary move to lower the threshold for cloture to 51 for consideration of presidential appointees. Only 17 Democrats in the Senate at the time had ever been in the minority, so the warnings from a handful of senior members went unheeded. Enough Democrats agreed to lower the threshold to 51 votes for all executive branch nominees and federal judicial nominees with the important exception of the Supreme Court nominees.  Republicans accused the majority of “breaking the rules to change them.”

The result of the change was swift and dramatic: Obama’s nominees sailed through the Senate and for the first time since the Reagan administration, more federal judges were appointed by Democratic than Republican presidents. At the DC Circuit, widely viewed as a springboard to the Supreme Court, the ratio became 7:4. All told, Obama succeeded in installing 327 judges on the federal bench. Even though Democrats were happy to have an easier time confirming Obama’s nominees, a handful feared that they would eventually revert to being in the minority and rue the day they made the change.

That day arrived on January 20, 2017. Senate Republicans who had been incensed by Reid’s maneuver (but did nothing to revert to the 60-vote threshold in the 114th Congress when they retook the chamber) were gleeful. They not only retained their majority in the 115th Congress but Republican Donald J. Trump became the 45th president. Trump has benefitted mightily from the gift Reid bestowed. Cabinet nominees who would have required 60 votes now only need 51, and even then, some barely squeaked by.

But it is on the federal judiciary where Trump could have the most lasting impact.  Article III directs that judges serve “during good behavior,” which in practice means life terms. Consider: Neil Gorsuch is 49, Justice Ruth Bader Ginsburg is 84, Justice Anthony Kennedy is 80, Justice Stephen Breyer is 78. That’s a legacy of decades of decisions. In addition to the current vacancy on the Supreme Court, there are plenty of vacancies for the 678 District Court judgeships and the 179 judgeships on the U.S. Courts of Appeals, popularly known as Circuit Courts.

Judge Gorsuch’s confirmation hearing before the Senate Judiciary Committee featured the standard bobbing and weaving about how he would interpret the Constitution, regard precedent on controversial issues, view his role, etc. Democrats are still smarting from the 13-month vacancy Republicans refused to fill with DC Circuit Chief Judge Merrick Garland, former President Obama’s highly qualified nominee. In their characterization, Gorsuch’s originalist approach to interpreting the Constitution and statutes is both rigid and antiquated. His decisions, they argue, demonstrate support for corporate America at the expense of “the little guy.” Republicans, meanwhile, have sought to portray Gorsuch as a qualified, mainstream jurist who has been in the majority on 99% of the cases he has heard during his ten-year tenure on the U.S. Court of Appeals.

The nominee insists he is “not a politician in robes.” But of course, politics is at the heart of the confirmation process. Gone are the days when outspoken nominees such as Antonin Scalia and Ruth Bader Ginsburg were confirmed by nearly unanimous votes. The Gorsuch vote will probably be like those of Justices Alito, Sotomayor, and Kagan in which unquestionably well-qualified nominees are confirmed on near party-line votes. (In 1956, the American Bar Association’s Standing Committee on the Federal Judiciary began ranking nominees.) “Well qualified” is its top rating and both Judge Gorsuch and Judge Garland earned it.  For a detailed discussion of the process, see here.

The Gorsuch vote is vexing for Democrats. As of this writing 21 have said they will or may filibuster, leaving 27 uncommitted. A few endangered ones including Sen. Heidi Heitkamp (ND) and Jon Tester (MT) have signaled that they will probably sit this one out. An NRSC ad aired during the Michigan v. Michigan State basketball game warned Michigan Sen. Debbie Stabenow to “put your country ahead of your party.”

The desire to give Republicans a dose of their own medicine by rejecting the nomination is understandable given that many Democrats see this as Garland’s rightful seat. After watching so many cabinet secretaries confirmed, the Democratic base is eager to deny Trump another victory. On the other hand, should Senate Democrats protect their vulnerable colleagues who are up for reelection in states Trump carried? After all, Republicans imploded all by themselves on the American Health Care Act, and all the reasons it was unconscionable to leave Scalia’s seat vacant for more than a year still apply. Should they vote for Gorsuch, claim the moral high ground, and see if it earns them any good will from Republicans? Or is that hopelessly naïve?

Looming over this decision, of course, is whether Republicans will use the same ploy Reid did to extend the 51-vote requirement to Supreme Court justices. If Democrats filibuster, what’s to stop Republicans from simply extending the 51-vote rule?  Will some senior senators who are loyal institutionalists balk? Trump has encouraged Majority Leader McConnell to “go nuclear” if the Democrats won’t allow Gorsuch’s nomination to come to the floor. McConnell has reminded the President that that’s the Senate’s call, not his. It may be that some Republicans don’t want to accede to the White House’s demands on principle and argued so vehemently against the Democrats’ disarming the minority in the first place. If Reid’s move destroyed the character of the Senate, wouldn’t expanding it to Supreme Court nominees only make matters worse? Another reason some Republicans might be reluctant to go nuclear is that the filibuster gives them cover. They’re quietly grateful because it allows them to blame Democrats for blocking some of the more troubling aspects of Trump’s agenda or nominees and avoid taking heat from the White House.

Suppose Democrats buy some time by voting for Gorsuch in hopes that Republicans don’t change the rules in the future. What guarantee do they have that Republicans won’t just invoke the 51-vote rule for the next Supreme Court vacancy even if they accommodate Gorsuch? What leverage do they have? Couldn’t Republicans apply the same rationale for the Supreme Court that Democrats cited for lower court judges?

While all eyes are focused on Gorsuch, the potential tsunami of judicial retirements deserves much more attention. Last year, the Supreme Court issued 63 written opinions while the lower federal courts (trial and appellate) handled approximately 400,000 cases.  The “Rule of 80” allows federal judges to take senior status when the sum of their age and years in service reaches 80. A recent study by Russell Wheeler of the Brookings Institution calculated that by 2020 more than half of the current Circuit Court bench would be eligible for senior status.  2020 happens to be the year of the next presidential election. None of the judges appointed to replace those who retire will require more than 51 votes in the Senate.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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Categories: 115th Congress, Judiciary, Revise & Extend, Senate, Updates