The Democrats have decided to filibuster the nomination by President Trump of Judge Neil Gorsuch to the Supreme Court. There never has been the use of a filibuster to block a Supreme Court nomination in our nation’s history except for the case of LBJ who nominated Justice Abe Fortas, former Johnson mouthpiece, to be the Chief Justice in 1968. His nomination fell to a bipartisan filibuster after it became known that Fortas, while on the Court, served as a Johnson adviser and, in effect, as an unofficial member of Johnson’s cabinet. It didn’t help that, as in the case of the man who nominated him, Fortas was suspected of being a crook, a suspicion which was proved in 1969 when public outcry forced Fortas to resign from the Supreme Court.
The filibuster is a creature of the Senate rules, and like any rule in the Senate may be changed by simple majority vote. Ridding the Senate of the filibuster is called the nuclear option. The Senate went nuclear on November 21, 2013 when former Majority Leader Harry Reid, tiring of Republicans filibustering Obama’s lower court nominees, as the Democrats had the lower court nominees of Bush, pulled the nuclear trigger on November 21, 2013 to get rid of the filibuster in regard to lower court appointees.
The filibuster of Neil Gorsuch, a man universally acclaimed as being well qualified to be on the Court, signals that there is no nominee for the Supreme Court that Trump would send up that the Democrats would not filibuster. They are forcing the GOP in the Senate to go nuclear, and I say thank God for it. The filibuster has outlived its usefulness. What was once a rare tool, deployed only in extreme circumstances, has become a commonplace means of obstruction by which the out party may frustrate the will of the party that holds the majority won at the ballot box. Preserving the filibuster in a time of extreme partisanship is an exercise in folly, especially since the Democrats have already demonstrated that when they hold the majority again, the filibuster will be headed to the La Brea Tarpits of outmoded legislative devices. The Republicans should invoke the nuclear option now in regard to Supreme Court nominees, and if the Democrats do not get the message, later in regard to legislation.