American Democrats and progressives are lighting their hair on fire over President Donald Trump’s nomination of GOP stalwart Brett Kavanaugh to the U.S. Supreme Court. And they should be. There’s nothing worse than being beaten at your own game and by your own rules.
Under long-standing Senate rules, a minority of 41 (out of 100) senators could “filibuster” — ie. block — presidential nominations to all federal courts, including the Supreme Court. The filibuster rule allowed a determined minority to talk a nomination to death. They could prevent a judicial nomination from ever coming to a vote by continuing to speak — since Senate rules required 60 votes to cut off debate.
In 2013, this all changed. Frustrated by Republican senators using filibuster to block president Barack Obama’s judicial nominees, the Democratic majority abolished the filibuster rule except for nominees to the Supreme Court. Going forward, a simply majority vote could cut off debate. At the time, there were 17 Obama judicial nominees awaiting confirmation votes, all of whom were subsequently approved by the Democratic majority.
Then-Senate Minority Leader Mitch McConnell warned the Democrats: “I say to my friends on the other side of the aisle, you’ll regret this. … And you may regret it a lot sooner than you think.”
Fast-forward to April, 2017. Donald Trump is now president, and the Democrats are desperately filibustering his nominee to the Supreme Court, Neil Gorsuch. Sen. Mitch McConnell, now Majority Leader, declares that what’s sauce for the goose is sauce for the gander, and uses his majority to extend the repeal of the filibuster rule to Supreme Court nominees. Debate is cut off, and Gorsuch is approved by a vote of 54-45.
Now with the retirement of Justice Anthony Kennedy, Trump has an opportunity for a second Supreme Court appointment. With the 2017 rule change, Senate Democrats have no opportunity to filibuster a final vote, which Trump, with 52 Republican senators, is likely to win.