To confirm Neil Gorsuch, Senate Republicans changed the rules lowering the barrier to confirm nominations to the Supreme Court. Now, as Brett Kavanaugh comes before the Senate, those rules still apply. For Republicans, with razor thin margins in the Senate, this will likely allow for a win and the confirmation of a second conservative judge to the nation’s highest court. The contentious hearing, however, is a reminder of the price of a confirmation victory: a more deeply divided and partisan Senate and Supreme Court.
To be clear, the change in confirmation procedures to benefit the party in power and the president date to 2013 when Democrats lowered the threshold to confirm President Obama’s nominations for cabinet positions and the lower courts by ending filibusters in those hearings. When Republicans furthered that same strategy, dubbed ‘going nuclear,’ to confirm Neil Gorsuch, Democrats learned a forceful lesson: changes under one administration can easily benefit the next.
Given current rules, for Brett Kavanaugh to be confirmed to the highest court, 51 senators will have to vote in favor. Previously, confirmations could be filibustered and the then 60-vote supermajority would have been needed to end debate.
Like Democrats who realized too late that they do not have a monopoly on electoral politics and that rules changed to benefit Obama now benefit Trump, Republicans will sooner or later see the new rules for the high court benefit their opposition.
In the long run, however, the impact of short sighted procedural changes from both Democrats and Republicans will be far greater that the added benefit for whichever party is in power.
In scrapping rules that often forced moderate choices and compromise, both parties have eaten away at the possibility and need for bipartisan agreement. The result is, as the just barely begun Kavanaugh hearings demonstrate, a deeply divided government and, likely, a Supreme Court filled with justices who are far more likely to rule as expected and on the partisan lines they were nominated and confirmed for rather than demonstrating the creative legal thinking, both the liberal and conservative kind, that has allowed American democracy to flourish in the twenty first century.
Although, in theory, senators could decide to change the rules back to their pre-2013 state, the problem with changing rules that benefit the party in power is that regardless of who holds that power, it becomes nearly politically impossible to give it and short-term victories up in the name of long-term stability. That is a loss for both parties and the country.
