If Congressional Republicans thought they had gained the power to disregard the rules with their victories in last November’s elections, they couldn’t have been more wrong.
Sen. Pat Toomey, R-Pa., just signed onto a rules change to the Supreme Court nomination process that might seem innocuous or necessary on its face, but will likely harm both parties.
The Pennsylvania senator announced last week at a press conference that he would support a move to modify the upper Congressional chamber’s rules in order to confirm Neil Gorsuch, President Trump’s nominee for the Supreme Court. The rule change would decrease the required number of senators to confirm Supreme Court justices from a supermajority of 60 to a simple majority of 51.
The proposed change comes in response to the seeming inability of the Senate Republican leadership to corral enough Democratic votes to support Gorsuch. Senate minority leader, Sen. Chuck Schumer, D-N.Y., has repeatedly voiced his party’s intention publicly to block the Republican nominee. Because of this, Republican leadership has only been able to garner promises from three Democratic senators to vote in favor of Gorsuch’s confirmation — far below the eight needed to give the GOP a 60-vote supermajority.
“We are not going to go for four or eight years with a dwindling number of justices on the Supreme Court because some people can’t accept the outcome of the last election,” Toomey said last Wednesday as an explanation of his support for the rules change.
Toomey’s statement criticizing Democrats stonewalling Gorsuch’s nomination seems especially misguided when looking at the Supreme Court’s recent history. The GOP notably refused to consider Merrick Garland last year for Scalia’s seat. However, Senate Republicans were using this tactic of ignoring nominees long before they won control of the chamber. The GOP’s efforts to block Obama nominees to lower federal judgeships led to Senate Democrats in 2013 removing the procedural rule requiring a 60-vote supermajority to confirm presidential nominees to these positions.
Despite this change, more than 10 percent of these judgeships are now vacant, in large part because Democrats in the Senate have not held a 51-vote majority since the 2014 midterm elections. Senate Democrats’ move backfired spectacularly, warning Republicans against seriously considering replicating the move for Gorsuch’s Supreme Court bid.
The shift to a 51-vote majority procedure will help only whichever party currently holds a majority. Thus, it’s difficult to see how the shift holds anything but a very limited promise for partisans on either side of the aisle.
What’s more, a change to a 51-vote majority rule would erode several elements of the Supreme Court nomination and confirmation process that are vital to the institution’s integrity. Given Supreme Court justices’ power and long-term lengths, it’s important that individuals selected to be added both have majority support and appeal at least somewhat to citizens on both the left and right.
A shift in the Senate’s confirmation rules would ensure that future presidents choose Supreme Court nominees not so much for their constitutional expertise and ability to forge legal compromises as for their ideological purity. And while that may appeal to one side or the other when it supports the government in power, it’s impossible that such a change will always work to the advantage of only the left or only the right.
Toomey’s signing on to this proposed rules change is a short-sighted, lazy attempt to avoid doing the work of gaining bipartisan support for his party’s nominee, and will only contribute to the hyper-partisan atmosphere growing more and more omnipresent in Washington, D.C. If he is concerned about the integrity of the institution in which he serves, he will withdraw his support for this proposal.