One of the most tedious aspects of our politics is partisan battles over legislative procedure. To hear each side tell it, the opposition never hesitates to employ unprecedented tactics to further narrow political goals at great cost to the republic. Such arguments are almost always disingenuous. The two parties view legislative process as little more than a means to an end, and both can be counted on to do whatever they think they can get away with.
So it goes with the judicial filibuster, which was “nuked” (in the contemporary parlance) by Senate Republicans to confirm Judge Neil Gorsuch to the Supreme Court. Democrats blasted this as a grave violation of the norms of the Senate, while Republicans responded that the Democrats set the upper chamber inexorably on this path when then-majority leader Harry Reid exercised the “nuclear option” and eliminated the filibuster for lower court and executive appointments.
This is just another iteration of a tired old game the two parties have been playing for decades, whereby each blames the other for the increasingly nasty process of confirming judicial nominees. Unfortunately, this partisan Sturm und Drang tells us hardly anything about why the Senate’s traditions regarding the judiciary have been laid waste. The only way to get the real answer is to turn the volume down on the jibber-jabberers and delve into postwar American political history.
When we do that, we find ourselves standing at the convergence of two trends, which combined have obliterated the old norms surrounding judicial confirmations.
First, the Supreme Court has taken it upon itself to stick its nose in all manner of issues that it had heretofore ignored. Gun control. Money in politics. Abortion. Gay rights. Sexual morality. Affirmative action. Law and order. Redistricting. Education. The list goes on and on. Judges of both ideological stripes seem to have an irrepressible desire to legislate from the bench, striking down laws because they violate some value that in the judicial mind must come before the will of the people, as expressed through their elected representatives. The reach of federal authority, moreover, has widened dramatically over the last few generations, meaning that federal courts are necessarily involved in all manner of questions that previously would not have been their domain.
As a result, the judiciary has become embroiled in the nation’s current ideological battle, particularly in the cultural dimension, where compromises are much harder to come by. Little wonder, then, that conservatives and liberals believe that control of the courts is a prize well worth possessing—a view that their analogues in, say, the 1870s would not have held so firmly.
Second, the two parties have realigned along ideological lines. This has been a slow process, but a steady one since Franklin Roosevelt’s tenure, and it is nearly complete. Previously, the two parties had been predominantly separated along geographical, religious, and ethnic lines—with the Democrats representing the segregationist South and urban Catholics, and the Republicans representing Northern Protestants. These divisions carried enormous meaning in their day, but they scrambled the ideological calculus—as somebody like Harry Byrd of Virginia could be a conservative Democrat and Edward Brooke of Massachusetts could be a liberal Republican. Those days are mostly gone. There are a few holdouts, for sure; Republican Susan Collins of Maine and Democrat Joe Manchin of West Virginia come to mind. These exceptions notwithstanding, the Republican party is clearly the conservative party and the Democratic party obviously the liberal one.
This is an important development for understanding the evolution of Congress, which has almost from the start been organized along partisan lines. Because the parties were not conterminous with governing ideologies until recently, congressional organization has only lately come to reflect the left-right divide of contemporary discourse. This process began roughly 40 years ago, when liberal backbenchers in the House Democratic caucus began to seize power from conservative committee chairs. It has more or less reached its apogee, at least in the House.
The Senate, which has long relied on norms of deference, has been better able to avoid these developments. With its smaller membership and longer tenures, members of both parties have an incentive to eschew a daily ideological food fight for the sake of mutual accommodation. But the increasingly ideological tenor of the modern court has proven too much for even the upper chamber to ignore.
Indeed, the demand of grassroots groups on the left all but forced Minority Leader Charles Schumer to try to filibuster Judge Gorsuch, even though he surely understood it to be an unwinnable fight. If the shoe were on the other foot, Mitch McConnell would probably have done likewise. The Senate is still, in its way, organized along partisan lines and couldn’t completely avoid being caught in the ideological whirlwind.
The breakdown of Senate tradition may leave the more nostalgic among us feeling morose, but there is nothing inherently wrong with this development. Legislative norms are no doubt useful and should not be cast aside for trivial reasons. But sometimes they do have to change.
In fact, the drama unfolding seems to be playing out in a way reminiscent of the projections that James Madison makes in Federalist 51, an essay that outlines how checks and balances are supposed to work. “Each department,” Madison writes, must be given “the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Over the last 70 years, the courts—like everything else in our politics—have become increasingly ideological and are involving themselves in policy domains about which the people, and by extension their representatives in the Senate, care deeply. Why should senators sit idly by, when they have the means at their disposal to bend the courts to the whims of their constituents?
Put bluntly, the Supreme Court has become undoubtedly political. And while it can be a messy and ugly spectacle, politics is not necessarily a bad thing. Quite the contrary, the rough and tumble of politics is essential to republican government.
