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.