Senate Republicans' move to kill the filibuster of Supreme Court nominations will have a lasting impact on future nominees and confirmation fights, court watchers say.
After Senate Democrats completed the first successful partisan filibuster of a Supreme Court nominee on Thursday, the Republican majority invoked the "nuclear option." By nuking the filibuster, Republicans lowered the vote threshold necessary to confirm Judge Neil Gorsuch from 60 votes to 51 votes, and the 10th Circuit Court of Appeals judge was confirmed to the high court Friday. The Senate's action makes it easier for future nominees to earn confirmation along similarly partisan lines.
Court watchers expect the change to affect the calculus of who President Trump, or future presidents, pick next to fill high court vacancies.
"As a result of the filibuster, presidents can now pick judges further from the median — that is more conservative or more liberal," said Josh Blackman, a South Texas College of Law professor and conservative, in an email. "There is no longer the need to assuage moderates in either party."
Liberals agree. Lena Zwarensteyn, director of strategic engagement for the American Constitution Society for Law and Policy, said nuking the filibuster further politicized the confirmation process.
"With the unfortunate rule change, it's likely that ideology and politics will play a greater role in decisions made by future presidents," Zwarensteyn said in an email. "If a president only needs his or her Supreme Court nominee to receive support from a simple majority of the Senate, the necessity of finding a potential justice who can appeal to senators from all parties is less important. Much of this will depend on the priorities and tendencies of the president if he or she will try to identify nominees that could garner broad support."
But some legal conservatives do not think it will have much of an effect on the types of nominees picked by presidents to fill high court vacancies. Elizabeth Slattery, a Heritage Foundation legal fellow, told the Washington Examiner she did not think the rules change would necessarily mean presidents pick younger high court nominees with hopes of installing judges with a longer tenure on the court.
"I don't think they would get too much younger than Gorsuch," Slattery said, while acknowledging that justices have steadily decreased in age. Gorsuch is 49. "I don't think that the rules change is really going to affect the calculus of the quality of nominees that Republican presidents will put up."
Slattery said she thought the conservative base would hold Republicans to account on whoever they would pick next and said she thought Democrats looked "pretty silly" in their effort to paint Gorsuch as outside the mainstream. Slattery noted that she did not think Trump's decision-making about Supreme Court selections would shift as a result of the rules change and said she thought he would stick to his list of potential high court picks if other vacancies on the Supreme Court opened.
Regardless of whether the rules change alters presidents' choices for the high court, the minority party in the Senate will be substantially disadvantaged. Minority Whip Dick Durbin recognized this new reality — after Democrats successfully filibustered Gorsuch — in remarks on Friday ahead of the Senate confirmation vote.
"What happened yesterday on the floor of the United States Senate was unfortunate," Durbin said. "A lifetime appointment to the highest court in the land should be more than just a bare majority vote, as far as I'm concerned. And historically, with very few exceptions, that has been the case. That is not the case here.
"At the end of yesterday's session, when the rule was changed some senators were engaged in high fives on the other side of the aisle — I'm not sure why. I don't think it was a time for any winning celebration. I think it was an unfortunate moment. ... I hope that we'll have the good sense to restore the 60-vote margin when it comes to future Supreme Court nominees."