I’m not happy Senate Republicans had to eliminate the filibuster for Supreme Court nominees. I’m an institutionalist. I love the Senate and what it represents. I value debate and honor bipartisanship.
But let me be clear: We are here because of what Democrats have done over the last thirty years to poison the confirmation process. I speak from experience, as I’ve been here through all of it.
I was here when Democrats started the confirmation wars with their treatment of Robert Bork. Just one year earlier, Senator Ted Kennedy had attempted to filibuster Justice William Rehnquist’s elevation to Chief Justice, but those efforts were thwarted by a bipartisan cloture vote and a subsequent 65-33 confirmation vote. But in 1987, Senate Democrats twisted Judge Bork’s words, misrepresented his record and did their best to turn a good and decent man into some sort of monster.
Next came Clarence Thomas. Democrats learned from their Bork experience that fabrications and misrepresentations can bring down even the most qualified nominee. So they set to work on Thomas. Not satisfied with denigrating his professional qualifications, they set about to destroy him personally. To his great credit, Thomas endured and was confirmed by a slim 52-48 margin.
When Bill Clinton became President, Senate Republicans did not retaliate. Instead, we gave Judges Ginsburg and Breyer fair hearings and confirmed them overwhelmingly. Indeed, as Ranking Member on the Senate Judiciary Committee, I helped shepherd through both of President Clinton’s nominees.
And how did Senate Democrats respond to our fair treatment of President Clinton’s nominees? They filibustered President George W. Bush’s. For the first time in history, Senate Democrats successfully filibustered ten court of appeals nominees. These were nominees who would have been confirmed had they gotten an up-or-down vote. What Senate Democrats did during George W. Bush’s presidency changed the Senate — forever.
Next up was Samuel Alito. Like Rehnquist, Alito faced a partisan filibuster by Senate Democrats. And like Rehnquist, he overcame that filibuster. (The only other filibuster of a Supreme Court nominee in our nation’s history was that of Abe Fortas, who faced a bipartisan filibuster due to his questionable ethics background when he was nominated to ascend from Associate Justice to Chief Justice.) Alito received fewer than 60 votes for confirmation, but he overcame the filibuster because 19 Senate Democrats voted to end debate on his nomination, even though only four ultimately voted for confirmation.
What happened when Barack Obama became president? Once again, after Senate Democrats had escalated the confirmation wars, Senate Republicans chose not to reciprocate. To be sure, many Republicans voted against Judges Sotomayor and Kagan, but no Republican attempted to filibuster their nominations.
And how did Democrats respond to our restraint? They eliminated the filibuster for lower-court nominees. The irony of this particular move is rich. It was the Democrats who, ten years earlier, for the first time in Senate history, began filibustering court of appeals judges in an effort to stop Bush’s nominees. When Senate Republicans did not roll over for Obama’s lower-court nominees, Democrats simply changed the rules back to what they were in practice ten years prior.
Democrats, that is, raised the effectual confirmation threshold to 60 votes by instigating filibusters to block Republican nominees, and then lowered it back down to 50 votes to push through Democratic nominees. And they did so after only seven failed cloture votes. Republicans, by contrast, endured twenty failed cloture votes during President Bush’s term, and never changed the rules.
That brings us to Judge Gorsuch. Having borked Bork, smeared Thomas, instigated the filibuster for lower court nominees when it was in their interest, filibustered Alito and then eliminated the filibuster for lower-court nominees when it was in their interest, Senate Democrats boldly argued this week that Republicans should throw up our hands and allow them to block Gorsuch — an unquestionably qualified nominee with broad support from across the legal community.
History leaves no doubt that, if the shoe were on the other foot, Senate Democrats would never have allowed a partisan filibuster of a Democratic president’s Supreme Court nominee. I have participated in this process for 40 years, during every combination of partisan control in both the Senate and White House. I have seen the confirmation process degrade from cooperation to, now, all-out partisan conflict.
That is not a direction that is good for the country or for the institutions of the Senate and the judiciary. I am relieved that we stopped Senate Democrats from continuing to poison the confirmation process and that Judge Gorsuch will get an up-or-down vote. It is unfortunate that the Senate rules had to be changed to ensure that. But that was the choice my Democratic colleagues made by attempting the first successful partisan filibuster of a Supreme Court nominee in American history.