Now that Senate Majority Leader Mitch McConnell (R-Ky.) has gone “nuclear” on the voting for Supreme Court nominee Neil Gorsuch, all but guaranteeing his confirmation Friday by altering longstanding Senate rules, all future appointments to the nation’s highest court will require just a simple majority.
That means if there’s a new vacancy in what remains of President Donald Trump’s term — perhaps if Justice Anthony Kennedy retires, which the White House seems to be longing for — Senate Republicans can have a far easier time getting the next justice confirmed.
The Supreme Court may never be the same.
“It’s one of my saddest days in the United States Senate,” said Sen. Richard Blumenthal (D-Conn.) on the party-line vote Thursday. “And sadder than anything it’s the damage that’s been done to two pillars of our democracy: the Senate and the Supreme Court.”
After Gorsuch takes his seat on the high court, all eyes will be on what Trump does with future vacancies. No Supreme Court member has given any indication of stepping down any time soon. But the prospect of Kennedy or one of the older liberal justices dying or leaving the court is a real possibility.
As things stand now, the minority party has lost all leverage in the process — the fallout of prompting the “nuclear option” showdown by starting a filibuster against Gorsuch’s nomination.
“My hope is that there’ll be a return to the tradition of consulting both sides of the aisle and reaching a mainstream candidate ― acceptable in a bipartisan way,” Blumenthal said
Arguably, Democratic senators do retain some say as to the names Trump might put forth for lower court vacancies. There are still 48 Democratic or Democratic-leaning senators in the upper chamber, and traditionally the Senate Judiciary Committee extends certain courtesies to home-state senators whenever there are open seats in their states.
Nan Aron, of the liberal Alliance for Justice, which opposed the Gorsuch nomination, said that that’s where Democrats should focus their fire ― the more than 100 vacancies in the lower federal courts.
“President Trump has made clear that he’s going to fill them with young, conservative ideologues and jettison the role of the American Bar Association,” she said. “All is not lost by any means. It’s still not a happy day.”
On the Supreme Court front, the glass-half-full view is that Gorsuch would bring the balance back to how things were before Justice Antonin Scalia died — a bench with five appointees by Republican presidents and four by Democratic presidents that will divide 5-to-4 on closely ideological issues, with Kennedy serving as the pivotal center.
Even in this scenario, the good news for Democrats, liberals and progressives, at least for now, is that Kennedy is a strong voice on certain issues they care about ― like LGBT rights, which are far from settled at this point — and has cast decisive votes in recent years on affirmative action, abortion rights and fair housing.
Gorsuch’s addition to the mix likely won’t change that dynamic, even as he has shown signs that he might be even more conservative than Scalia in certain areas. On the flip side, Gorsuch would likely join the court’s conservative wing on labor, campaign finance and business-related litigation, areas in which the justices tend to split along ideological lines.
The judge’s views on immigration, too, are curiously centrist, and there are indications in his record that he may not give Trump the upper hand against undocumented immigrants all the time. One of his more popular opinions as an appeals judge — in which he raised questions about the administrative state — happened to spare an undocumented immigrant from deportation.
As for what kind of nominee might be put forth by Trump in the event of a new vacancy, there’s no telling if he’ll stick to the unconventional list of names that he rolled out during the campaign or if his advisers will start from scratch. The White House is already hard at work preparing for that next battle.
Another silver lining for both Democrats and Republicans in a world without a filibuster is that presidents of both parties will now have an incentive, if they also have a Senate majority, to nominate people outside the box. Which in turn may motivate them pick more diverse or unconventional nominees ― unlike Gorsuch or Judge Merrick Garland, President Barack Obama’s rebuffed Supreme Court nominee, both of whom were fairly elite and conventional.
The filibuster “is one reason nominees have morphed from quirky, brilliant, flawed, controversial political figures into cautious, careful, qualified and essentially perfect human beings like Garland and Gorsuch,” wrote Harvard law professor Noah Feldman in a column.
“Greatness involves risk,” Feldman added, “and the filibuster threat has helped keep judicial nominees essentially riskless. I wouldn’t have chosen the end of the filibuster, especially not the way it actually took place. But now that it’s gone, let’s dance on its grave.”