Calm before storm? How Senate could change after Barrett confirmation.
The last time a Supreme Court nominee came before the Senate Judiciary Committee, it was open warfare in the hearing room, as nominee Brett Kavanaugh faced last-minute allegations of sexual assault.
鈥淏oy, y鈥檃ll want power. God, I hope you never get it,鈥� Sen. Lindsey Graham raged at Democrats over their treatment of the nominee two years ago.
This time around, the Republican senator from South Carolina, now the committee chairman, has pronounced the hearing 鈥渧ery good鈥� with 鈥渧ery good questions, hard questions.鈥� In contrast to 2018, the tone is respectful 鈥� in听part because no one is challenging the character of Judge Amy Coney Barrett.
Why We Wrote This
Judge Amy Coney Barrett鈥檚 Supreme Court nomination hearings have been respectful. But they could represent a new, more intense phase of the Senate鈥檚 partisan struggle over seating judges, politeness notwithstanding.
But make no mistake. The judicial wars in the Senate have not subsided. In a body that has applied the term 鈥渘uclear option鈥� to its consideration of nominees, some Democrats are now talking about detonating more procedural bombs: getting rid of the 60-vote threshold informally required to pass most legislation, known as the filibuster, and increasing the number of Supreme Court justices so a Biden administration could 鈥減ack the court.鈥� These are moves that would change how government works 鈥� though how significantly is a matter of debate.
What鈥檚 not in dispute is the decade-by-decade arms race over judicial nominees, and how it has amplified political division within the Senate.
鈥淎t every turn over the last 50 years, each party has used the tools at its disposal to fight over the control of the court, and I don鈥檛 think that鈥檚 changing,鈥� says Gregg Nunziata, former chief nominations counsel on the Senate Judiciary Committee and former policy adviser to Republican Sen. Marco Rubio of Florida.
At the Kavanaugh hearing, Senator Graham, boiling over with anger, hollered that 鈥渢his is the most unethical sham since I鈥檝e been in politics 鈥�!鈥� Democrats this week have charged the same thing 鈥� albeit in a more measured manner.
Presidents are fully within their constitutional rights to nominate a justice at any time in their term. But Democrats have sharply criticized the rushed process, meant to confirm Judge Barrett before the Nov. 3 election, calling it 鈥渋llegitimate鈥� and a 鈥渟ham鈥� as millions of Americans are already voting. They鈥檝e slammed Republicans as hypocrites for refusing to even consider President Obama鈥檚 nominee, Merrick Garland, because a presidential election was coming in eight months. 鈥淭he people should decide鈥� who would pick the nominee, the GOP said at the time.
Why GOP lines up for Barrett
Throughout American history, presidents have sought to put their stamp on the high court, and that has led to some big battles, reminds former Senate historian Don Ritchie. Thomas Jefferson for instance, tried and failed to impeach a Federalist justice appointed by George Washington. Franklin D. Roosevelt tried and failed to pack the Supreme Court with more justices in order to protect his New Deal legislation.
When it comes to the courts, 鈥渢here have been periods of polarization, but in recent years, it鈥檚 gotten much worse,鈥� says Mr. Ritchie.
A big reason is that the courts have been deciding some of the most contentious issues that divide Americans and affect everyday lives 鈥� health care, abortion, gun regulation, and gay marriage, among others. Indeed, Democrats have pointedly questioned Judge Barrett, the ideological opposite of Ruth Bader Ginsburg, on all of these issues.
At the same time, the political parties have evolved into more or less monolithic groupings of conservatives and progressives, rather than the ideological mixtures of old that lent themselves more easily to negotiating across the aisle to get things done. Also, beyond qualifications and character, judicial philosophy and ideology of nominees has become much more of a factor.
All of this explains why, as Chairman Graham observed on Monday, Republicans on the committee will line up for Judge Barrett, and Democrats won鈥檛 鈥� and why Republicans backed President Trump鈥檚 nominee even before she was announced.
In the Senate, the judicial battle that ignited today鈥檚 war was the nomination of Judge Robert Bork to the Supreme Court by Republican President Ronald Reagan in 1987. He was, as Mr. Ritchie recalls, 鈥渁 human barbed wire, who offended a lot of people鈥� by carrying out President Richard Nixon鈥檚 orders to fire special prosecutor Archibald Cox, who was investigating Watergate, and by his comments about rolling back Supreme Court civil rights rulings. Like Barrett and her mentor, Justice Antonin Scalia, he was an 鈥渙riginalist鈥� who believes the Constitution should be interpreted as written at the time.
It was a contentious hearing that eventually ended in his 58-42 defeat, and set the stage for partisan escalation: filibusters to block the appointment of federal judges by presidents in both parties, subsequent backlogs of appointments, and eventually the detonation of 鈥渘uclear options鈥� to blow up those backlogs and the filibusters that allowed them, by requiring only a majority vote for approval. The first one was set off by Senate Democrats in 2013, and applied only to lower court and executive nominees; the second by Republicans in 2017, to include Supreme Court nominees.
As Mr. Nunziata describes it, the nuclear option was a 鈥渂rute force mechanism鈥� imposed by a bare majority of the Senate on a body that does not traditionally operate by the maxim of majority rule, as does the House. The more deliberative Senate is often described as the 鈥渃ooling saucer鈥� for the House, but that could change if Democrats gain control of the Senate and do away with the filibuster altogether, allowing legislation to pass by majority vote.
鈥淚f taken to its logical conclusion, all minority rights of the Senate could fall, and [it could]听become a legislative body like the House, operating on the brute strength of the majority,鈥� Nunziata says.
Will Senate still be special?
Not everyone agrees with that scenario. Even if Democrats did kill the legislative filibuster, the Senate would retain many of its special characteristics.
For instance, senators are elected every six years instead of two, giving them a longer view. Some represent swing states, with no guarantee that they will always fall in line. A two-thirds majority is required to override a presidential veto, approve treaties, and convict in an impeachment trial. Meanwhile, individual senators can still muck up the works by, for instance, refusing to grant unanimous consent 鈥� required for so much of Senate business.
鈥淚 don鈥檛 really expect the Senate to turn into the House,鈥� says Sarah Binder, an expert on Congress at the Brookings Institution and a professor of political science at George Washington University.
What Dr. Binder and others foresee, though, is a Senate with partisan policy swings: aggressive legislating, particularly if one party controls the Congress and the White House, followed by attempts to undo those laws when the other party takes control. Think of the passage of the Affordable Care Act, which has been followed by at least 70 Republican attempts to repeal it.
Rather than reflecting compromise, with something for everyone, legislation would have a 鈥渓ove it鈥� or 鈥渉ate it鈥� quality to it, suggests Mr. Ritchie.
鈥淚 don鈥檛 think the republic would collapse, but the Senate would be a very different body,鈥� ventures Mr. Ritchie, noting that the Constitution never included the filibuster.听鈥淚 can鈥檛 say it would be better or worse, but it would be different.鈥�
Opinions range, too, on the implications of a larger Supreme Court. The Constitution doesn鈥檛 stipulate how many justices should sit on the court. It鈥檚 been nine since 1869.
Some judicial experts, like Nunziata, believe packing the court would politicize it, especially in the eyes of the public. He fears, as Joe Biden has speculated in the past, that there would be a tit-for-tat response by the other party in a subsequent election to add even more justices.
Dr. Binder says there鈥檚 uncertainty about what a larger court would mean. She鈥檚 not sure it鈥檚 the danger that some suggest.
She sees the move of adding seats, which she calls 鈥渃ourt curbing,鈥� as a move to protect the status quo.
鈥淚t eliminates most likely the fear of the immediate unraveling of decades of jurisprudence which have protected a whole range of individual rights,鈥� she says.
Democrats mull fateful step
A lot of stars would have to align to actually make these changes happen. First, Democrats would have to win the House, the Senate, and the White House 鈥� a distinct possibility. Second, Democrats would have to agree 鈥� first on killing off the legislative filibuster and then on stacking the court. But it鈥檚 far from clear they would unite on either of these.
Joe Biden is a Senate institutionalist, and this week 鈥� after saying he would not comment on court packing until after the election 鈥� he told a Cincinnati broadcaster that he is 鈥�.鈥� When Republican Sen. Mike Lee of Utah attacked court packing in this week鈥檚 nomination hearing, Sen. Dick Durbin of Illinois, the second ranking Senate Democrat, told reporters 鈥渢here鈥檚 no active conversation, or deliberation about any changes in court composition.鈥�
However, the former vice president seems to have warmed to getting rid of the legislative filibuster, an idea he opposed as recently as February. He听听in July that it would depend on how 鈥渙bstreperous鈥� Republicans become in blocking legislation in Congress.
And then, too, there are those Democratic senators from purple states.听Might failure to pass some major legislation, say on climate change or immigration, unite them? Possibly. Would an early Supreme Court decision striking down the Affordable Care Act bring them in line? Again, that鈥檚 a possibility. But what about public opinion? That worked against FDR鈥檚 court packing plan, for example.
Still, underneath these debates, the partisan divide reflected in the听procedural arms race continues. Both parties have talked about getting rid of the legislative filibuster in the recent past. Now, many Democrats sound ready to take that fateful step.听
鈥淭he question is not, should Democrats pack the courts,鈥� says Jeremy Parris, the former Democratic counterpart to Mr. Nunziata on the Senate Judiciary Committee. 鈥淭he question is, what are the Democrats going to do to respond to right-wing court-packing?鈥�
Republicans, he charges, continue to push an unpopular policy agenda through the courts.
鈥淚f Republicans continue to abuse their power this way, it may be that we have no choice,鈥� Mr. Parris听says.
And if Republicans lose this election for failing to work through problems such as the pandemic, and then continue to block legislation even as a Senate minority, Mr. Parris is resolute: 鈥淭hen we do away with the filibuster.鈥�
