Sen. Mitch McConnell has won his Supreme Court bet. Last year he risked control of the Senate by pressing even the most vulnerable Republicans to deny Merrick Garland the barest of consideration. He was rewarded with a Trump presidency. Now he will cash in by installing Neil Gorsuch on the Court after deploying the so-called nuclear option, abolishing the filibuster for Supreme Court nominees.
It’s a victory, too, for all those conservatives who held their noses and pulled the lever for Trump solely because he had promised to put one of their own on the Supreme Court. But when it comes to the confounding politics of the judicial branch, what looks good today might not look good tomorrow.
“You’ll regret this, and you may regret this a lot sooner than you think,” said a prescient McConnell in 2013 when Democrats detonated a smaller procedural nuke, removing the filibuster for lower court nominees and executive branch appointments.
Soon it may be McConnell’s turn for regrets. Beyond pocketing Gorsuch—and replacing one conservative justice for another—nothing about what comes next is guaranteed. Here are three big reasons why McConnell may wish he took his own advice.
1. Demands to end the legislative filibuster will only get louder
McConnell has pledged he will not scrap the filibuster for legislation, an honorable stance. A Senate without any filibuster would turn the Senate into a completely majoritarian institution, barely distinguishable from the House, with minimal need for bipartisan cooperation.
We have every reason to take McConnell at his word. But McConnell’s problem is that a restive conservative base may have other ideas.
At some point, the Republican caucus will unify around a piece of legislation near and dear to conservative hearts, then immediately run smack into a Democratic filibuster. Many conservatives will naturally make the case to Senate Republicans: What’s stopping you from killing the filibuster once and for all?
The Senate has now gone “nuclear” twice—using a parliamentary gimmick to change the Senate rules without the normally required two-thirds majority—without suffering the expected fallout. The “nuclear option” name was coined on the presumption that a livid minority would respond by grinding Senate business to a halt. But that didn’t happen.
Now that we know a Senate majority could end the filibuster and live to talk about it, ideological senators and their activist supporters will be incredibly tempted to finish it off.
But if McConnell means what he says, he’s likely to cause yet another deep rift between Establishment Republicans who worry about the Senate as an institution, and populist conservatives who want to decimate all institutions that stand in their way.
If such a dispute engulfs the party before the 2018 or 2020 elections, then Republican turnout could take a hit. Which brings us to the next possible regret for McConnell and his Republicans…
2. No one knows who will own the next round of nominees
With three sitting justices over the age of 78—Stephen Breyer, Ruth Bader Ginsberg and Anthony Kennedy—the odds are decent that Trump and the Senate Republicans will get another shot at a Court nomination.
In particular, Court watchers have feverishly speculated about a Kennedy resignation for this year (albeit on minimal evidence), as Kennedy is the lone octogenarian Republican appointee. White House aides have been trying to entice Kennedy to step down, naming his former clerk Gorsuch to the Court now and floating the names of other former Kennedy clerks as likely nominees in the future.
If the nuclear option allows a Republican majority to replace the Kennedy swing vote, or one of the elder liberals, with a young rock-ribbed conservative, then going nuclear will have paid off in spades for McConnell.
But that is only one scenario. In fact, going nuclear might compel Kennedy not to quit.
As former Supreme Court clerk Ronald Klain explained in a January Washington Post op-ed, “Eliminating any power of the minority to stop the most extreme possible nominee would probably be a red flag to Kennedy—an indication that the way was clear for a balance-shifting nominee who rejected Kennedy’s views and moved the court in a radical new direction.”
Beyond the implication of the lost filibuster, Kennedy may be unnerved, not soothed, by the choice of his former clerk Gorsuch. The two diverge over the constitutional relevance of human “dignity,” a concept dear to Kennedy that girded his landmark opinions securing equal rights for gays. Kennedy may legitimately fear his judicial legacy may become undone if he leaves too soon.
Besides not knowing when anyone would quit, or pass away, no one can know the outcome of the next elections.
The 2018 Senate map is treacherous for Democrats, who are defending 25 seats (when including the two independents who caucus with them) versus nine for the Republicans. Worse, 10 red-state Democrats are up for re-election but only one blue-state Republican (Sen. Dean Heller of Nevada) and one purple (Sen. Jeff Flake of Arizona). So Republicans have good reason to believe they can withstand the usual midterm swing of the political pendulum.
But just as Democrats were blindsided by 2016, Republicans may get upended by a blue wave. If Trump’s poll numbers remain consistently dismal, and the Republican Congress proves incapable of following through on any of its promises, then that would create the conditions for Democrats to pick up the net of three Senate seats necessary to control the chamber. And even if 2018 is out of reach for the Democrats, the 2020 Senate terrain is more level and that battle will run alongside (we assume) another polarizing Trump campaign, which could hinder Republican incumbents.
In other words, Democrats may end up being the ones who get to reshape the Court for a generation, without the pesky filibuster getting in the way.
3. The next round of Democratic judges may be more notorious than Notorious RBG
Before voting for it, Republican Sen. Bob Corker warned that by detonating the nuclear option, the president and his successors “can nominate … an extreme person because … they will no longer be bound by having to put someone forth that would at least meet some type of minimal criteria.”
That warning was not much of a disincentive for Democrats. Republicans have already gone as far to the right as they could go with the nominations of Clarence Thomas and Samuel Alito. Thomas may be the more provocatively reactionary of the two, but as one Yale law professor concluded, “There’s not a single important, politically charged case that I know of in 10 years where [Alito] was the fifth vote with the four liberals." And while justices with lifetime tenures have been known to surprise—as with John Roberts’ upholding of the Affordable Care Act—most liberals presume Gorsuch will be another Thomas or Alito.
But Republicans may soon find out there’s a whole lot of space to the left of Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor. The oft-repeated conservative narrative of a Court dominated by left-wing activists clouds the reality: This “liberal” wing is a modest bunch.
The justice known as “Notorious RBG” was not so notoriously nominated by President Bill Clinton upon the recommendation of conservative stalwart Sen. Orrin Hatch. After the nomination, Hatch recounted to PBS’ Charlie Rose, “I said [to Clinton], ‘if you want this to be a Jewish seat, and I’ve heard that you would like to pick a Jewish person, I said you cannot ignore Ruth Bader Ginsburg…’” (There had been no Jews on the Court for decades, and Ginsburg was not yet on Clinton’s short list.) Hatch also blessed Stephen Breyer, who became Clinton’s subsequent nominee.
Hatch explained his thinking: “Breyer is a social liberal, just as Ginsburg is. [But they] qualify as moderates because of the other stands that they take. For instance, Breyer’s quite moderate with regard to antitrust laws … so is Ginsburg, on criminal law.” Hatch also acknowledged Ginsburg’s criticism of the reasoning behind the Roe v. Wade decision, which troubled liberals at the time: “The fact that she would find a different way of writing the opinion is not unusual. She’s a scholar.”
Ginsburg and Breyer didn’t hoodwink Hatch. A New York Times analysis of the 2014 term found that Breyer was “more likely to vote with Chief Justice Roberts, Justice Kennedy, Justice Thomas or Justice Alito than any of the other liberals.” And Ginsburg has leaned right on criminal justice matters; a review of her tenure by leftist critic David Kinder in Current Affairs ticks off several cases in which Ginsburg sided with police and prison authorities and against civil libertarians and death penalty opponents.
Along with President Obama’s two appointments, who were also mainstream enough to attract Republican votes for confirmation, the four “liberal” justices have been willing to line up with conservatives for unanimous rulings that disappoint progressive activists. Abortion rights activists were stunned when the four liberals joined the opinion striking down “buffer zones” intended to keep anti-abortion protesters away from abortion clinics. Environmentalists were deflated when a 9-0 Court constrained the EPA’s ability to press property owners into compliance with wetland regulations. Obama was surely aggrieved to see his own appointees joined the unanimous ruling to deny him expansive recess appointment power so he could circumvent filibustering Republicans.
What sort of judge might we expect Democrats to tap when they don’t need any Republican support? Someone who is not a judge at all.
Before Hatch led Clinton to Ginsburg, Clinton initially wanted to pick a politician for his first Court nomination. As historian Taylor Branch described in “The Clinton Tapes,” “His goal was to restore appreciation for the Court as an integral branch of balanced government, rather than a technical specialty for lawyers and judges, and to redress decades of corrosive cynicism about politics.” But his first choice, liberal hero Gov. Mario Cuomo, declined. Then Hatch warned Clinton against choosing former Gov. Bruce Babbitt, who was serving as Clinton’s interior secretary, for it would make the confirmation process more complicated.
After Clinton was unable to broaden the pool of Supreme Court nominees to non-judges, Sen. Harry Reid took up the cause. In 2005, he successfully encouraged President George W. Bush to nominate his White House Counsel Harriet Miers to the Court. Once nominated, Reid praised her as someone with “no judicial experience. I think that’s a plus, not a minus.” But Reid’s gambit backfired when the right wing revolted and Miers withdrew, soon to be replaced by Alito.
Still, the desire remains among Democrats to move away from bloodless judicial technocrats, and return to the days when governors, senators and even a former president (William Howard Taft) brought their life experiences and back-slapping skills to the highest court. The last of this breed was Chief Justice Earl Warren, the progressive Republican and former California governor who desegregated the schools, decreed “Miranda” rights for criminal suspects and established the right to privacy—the precursor to Roe v. Wade.
Conservatives, who have taken for granted that today’s judicial liberals have operated with considerable restraint, may again learn the hard way how far the left the Court can really go.