Thirty years after the fateful battle over Robert Bork, the filibuster for Supreme Court nominations is dead. We have now fully transitioned to a new, openly political process for confirming our nation’s highest jurists. And since Democrats started this fight and escalated it at every opportunity, it’s only fair that Republicans got to end it, installing Neil Gorsuch to the Court and clearing the way for future Trump nominees.
Bork wasn’t the first Supreme Court nominee the Senate refused to confirm, and his nomination wasn’t the first in which political concerns played a role. But the affair represented a nasty partisan turning point for the process. His competence was not even slightly in dispute. He had served as a Yale Law School professor and published groundbreaking work on antitrust law that changed the Supreme Court’s stance on the issue. But Democrats savaged his judicial philosophy in extreme terms, most notoriously in this ridiculous rant from Ted Kennedy on the Senate floor:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
This original “borking” didn’t require a filibuster because Democrats had a Senate majority and could simply vote the nomination down. But it was only a matter of time before a Senate minority would claim the head of a judicial nominee, and Democrats were once again the culprits. In 2002 they launched the first-ever filibuster of an appeals-court nominee, Miguel Estrada. Republicans didn’t have the stomach to invoke the “nuclear option,” eliminating the filibuster through a simple Senate rule change, so the nomination went down in flames, as did a few other Bush picks.
Democrats didn’t push their luck too much, however. Seven moderates agreed in 2005 to approve some nominations they’d initially filibustered in a deal to stave off the nuclear option—and when a few Democrats tried to take out Supreme Court nominee Samuel Alito the next year, they fell well short of the 41 votes needed to prevent a “cloture” vote to end the filibuster effort. No doubt they knew that if they brought this tactic to the nation’s highest court, Republicans would have no choice but to go nuclear.
The presidency changed hands in 2009, and Democrats developed a different view of judicial filibusters. In 2013 they were the ones to unleash the nuke, ending filibusters for non-Supreme Court nominations and thus denying Republicans a tool that Democrats themselves had brought online in the first place.
They were prepared to drop a second bomb, too. Last year, Tim Kaine—secure in the knowledge that he would be the next vice president and preside over a Democratic Senate—proudly announced that his party would destroy the Supreme Court filibuster when those lawless Republicans inevitably tried to block President Hillary Clinton’s nominees.
Republicans aren’t entirely blameless here. They paid the Democrats back in full in the lower courts, filibustering several Obama nominees before the Dems pushed the nuclear button. And last year they simply refused to consider the Supreme Court nomination of Merrick Garland, a petty move even if it was entirely constitutional.
But it was Democrats who started this transition—away from adherence to unwritten norms and toward an all’s-fair-in-love-and-war mindset—and repeatedly upped the stakes. It’s hard to feel sorry for them that it’s a Republican president who will serve the first term under the new rules. Once Bork got borked, it was practically inevitable that we would end up here, with no lingering stigma for voting down qualified nominees for political reasons, but also with no filibuster to allow a minority to pull this nonsense. Such behavior can’t last when all it takes is a majority vote to change Senate rules.
Should we mourn the end of the filibuster on some level? Well, it’s not dead yet: it’s still allowed for legislation, as opposed to nominations, though that could change as well. But more to the point, if we should mourn the filibuster we should focus our lamentations on a long-dead form of it.
As TAC editor Robert W. Merry explained in a Washington Times column last month, there was a time when the maneuver allowed a minority to register its extreme disagreement with the path the majority had chosen, not to obstruct anything it felt like obstructing. Back then, Senate rules required the minority to actually filibuster—they had to hold the Senate floor indefinitely, talking continuously, even if that meant reading a dictionary. This was exhausting and wasted the time of the nation’s legislature, imposing personal and political costs on those who took this route.
But the rules changed in 1975. As Merry writes, “Whereas previously any senator who wanted to filibuster had to stand up and make his case, foregoing nourishment and bathroom breaks, now he could just declare his intent to filibuster and go merrily on his way.” Nowadays old-school “talking filibusters” are rare and done mostly for the cameras.
Before 1987, various unwritten customs governed how the Senate handled judicial nominations. That year—just one year after confirming Antonin Scalia 98–0—Democrats decided to abandon those norms and instead use all the tools at their disposal to achieve their political goals. They voted down Robert Bork (and smeared him for good measure) when they had a majority, filibustered Miguel Estrada when they didn’t, went nuclear when Republicans turned the tables on them in 2013, and had every intention of forcing Hillary Clinton’s nominees through this year. It is poetic justice that the natural end point of this process, the demise of the filibuster for Supreme Court nominees, could cost them the Court for a generation.
Robert VerBruggen is managing editor of The American Conservative.