In October of 2018 I wrote this op-ed on my earlier (2015-2021) version of this website. I have since resurrected it to emphasize my historical books on the Trump Presidency. At the time I was watching the Senate confirmation hearings on the nomination of Judge Kavanaugh to the Supreme Court. It was startling to me, not for the frequent outside interruptions, or the vicious partisan positions expressed by Senate members, but by how these hearings are now conducted. Why we now allow a Supreme Court Justice to be elected by a simple majority of 51% is the result of the Senate changing the established norms of procedure starting with the filibuster and ending with the Nuclear Option.
A brief history of the filibuster
Filibusters were infrequent due to the Senate custom of civility in consideration of minority views and because they were so hard to overcome. This encouraged the need for compromise which promotes legislation in the best interests of America and not Party alliance. In 1917 cloture rules for ending filibusters were put in place, but required a two-thirds vote; so high it was rarely tested. After the Nixon Watergate disgrace in 1975, the bar was lowered to three-fifths, or 60 votes.
From 2007 thru 2014, when the Republicans were the minority party in the Senate, they greatly escalated the normal two-year election period use of the filibuster to an average of 80.5 times. Compare this with the two-year average of 35.25 times from 1995 thru 2006, when the Democrats were the minority in the Senate. During the period of 2013-14 when Pres. Obama was in office, Republicans used the filibuster 253 times to prohibit his appointments and legislative agenda.
Changing the Senate rules to require only a simple majority
As stated in the Constitution, Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate. The Senate Judiciary Committee typically conducts confirmation hearings for each nominee. Article III of the Constitution states that judges, both of the supreme and inferior courts, shall hold their offices during good behavior (often paraphrased as appointed for life). Judges hold their seats until they resign, die, or are removed from office.
This abuse of Senate procedure against compromise by the Republican minority led to the dysfunctional partisan politics we see today. In 2013 a frustrated Senate Majority Leader Harry Reid, changed the rules of the Senate to require a simple majority to allow for judiciary nominees, with the stated exemption of those for the Supreme Court, to proceed to a final vote for confirmation.
On March 16, 2016, following the death of Justice Antonin Scalia, Pres. Obama nominated Merrick Garland, the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit to the Supreme Court. However, Sen. McConnell refused to even consider holding a vote on any potential nominee until a new president was elected; a period of over nine months.
Senate Majority Leader Mitch McConnell has totally corrupted the long established tenets of how Supreme Court Justices are confirmed. That being the super majority of 60 votes that is necessary to overcome a filibuster by the opposing members. He altered this precedence by invoking the Nuclear Option during the hearings for Pres. Trump’s controversial 2017 pick of Neil Gorsuch as the replacement of Justice Scalia.
Look at what is happening now with Pres. Trump’s selection of Judge Kavanaugh to the Supreme Court with only 2 months to the mid-term election. Republicans are rushing this highly controversial appointment with known partiality for far-right decisions and now questionable “good behavior” needed for election to office. It is believed that he has previously and presently lied during confirmation hearings. Compound this with the new credible allegations of past sexual behavior.
How is this acceptable when there are so many other great qualified judges with unquestionable character that could be nominated. The only way for we concerned voters to defeat this polarization of our country and restore faith in our government, is to elect politicians who are willing to compromise. It is apparent to me that the Republican Party has gone way too far in their allegiance to party over what is best for all hard-working Americans.
Controversial decisions by the Republican led Supreme Court
Here we are now in 2023 and look at how the Republican led Supreme Court has redirected legislation that has severely affected American lifestyles. The most publicized Supreme Court’s decision is the one to overturn Roe v. Wade, which will incentivize the mostly red states where abortion is illegal, to be even more restrictive. The blue states where it is mostly available with restrictions, will now have to work to elect more senators and representatives who will once again codify into federal law a woman’s right to choose.
The court made two decisions in June 2018 that damaged voting rights. It upheld gerrymandered election maps in Texas, ignoring evidence that the maps were drawn to minimize the power of minority voters. It also declined to take up a similar North Carolina gerrymandering case. The Texas ruling, which was 5 to 4, is another example of what some people call a Merrick Garland decision. One in which the result almost certainly depended on Senate Republicans’ refusal to let President Obama fill an open court seat in 2016. This further shows the ever-increasing Republican efforts to rig the electoral system, through actions like partisan gerrymandering and voter purges.
In June 2022 the Supreme Court made a decision that affects those of us in New York State who doesn’t want people coming from other states carrying their handguns flagrantly strapped to their bodies. The Supreme Court over-ruled New York State’s gun restriction allowing ordinary, law-abiding citizens to have a right to carry handguns publicly for their self-defense. Uncontested, this now gives MAGA supporters the right to carry handguns and publicly gather to intimidate the defenseless.
