The United States Senate created negative history and reduced the prestige of the Senate forever by filibustering the nomination of Judge Neil Gorsuch over partisan politics.
This has been building for a few years. Originally, when the Congress was created, the founding fathers decided on a House of Representatives which is determined by population of each state. A state is divided into districts and each district has a representative. There are 435 seats. States with a higher population have more representatives and those with lesser populations have fewer representatives. They are elected to two year terms.
The Senate was created for equal representation for the states. So each state was given two Senate seats. So while the House of Representatives is supposed to represent the people based on districts in each state, the Senate is supposed to represent their state with two senators. They are elected to six year terms and the terms are staggered. So one state will not have both senators up for election at the same time. This was to produce continuity in the Senate.
The Senate has been considered a more deliberative body. It was to be prestigious. It has longer terms, it’s a smaller group and it’s constituency is an entire state. This has been considered historically to have led to a less partisan tone. It’s also thought to have been more collegial despite the differences. While the House can be thoughtful, it operates almost as a free for all because there are so many members and therefore must be limited in speech time on the floor of the house, the Senate having less members have the ability to speak for longer periods, and in a more organized as well as friendly manner even in disagreements.
One of the responsibilities of the Senate is to have the responsibility of advice and consent to appointees of the President. This stands out more when it concerns the Supreme Court of the United States.
Since 1789, there have been 161 Supreme Court nominations. 124 have been confirmed. Of the 37 not confirmed, 11 were rejected in roll call votes. The rest have been withdrawn by the President, tabled, postponed or never voted on by the Senate, including current nominee, Judge Neil Gorsuch.
There is a sequence of events that set off this round that began in 1992. Vice President Joe Biden as a Senator in June 1992, and Chairman of the Judiciary Committee, got on the Senate floor and gave a 90 minute address. In that speech he said that there should be no action on Supreme Court vacancies in an election year. Biden said President Bush “should not name a nominee until after the election in November.” He said “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
“Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.” Notice he mentions the President, the nominee and the Senate, but does not mention the people.
Twenty four years later there is a vacancy not only in the year of an election but in the final 11 months of a presidency, of which Biden is the Vice President, Justice Antonin Scalia died on February 13, 2016 leaving a vacancy on the court.
In November 2013 the Democrats, who were losing seats in the House, the Senate and across country in state and local elections, were facing judicial appointments below the Supreme Court level that they couldn’t get past the Republicans due the filibuster rule. This has been a problem for many years. The party out of power holds up judicial appointments. So the Democrats answer was to eliminate the filibuster for judicial appointments but did not include the Supreme Court. Despite excluding the Supreme Court it was still a drastic change from history.
The Republicans, in the majority in the Senate said that they would not take up a Supreme Court nominee before the election citing Joe Biden from that 1992 statement on the floor of the Senate. On March 16, 2016 Merrick Garland was nominated to the Supreme Court by President Obama. Vice President Biden chose to change his position from 1992 now that the situation he talked about twenty four years earlier now came to pass while his party would be on the other side.
The Republicans did exactly as they said they would do. They did not hold hearings in the Judiciary committee and naturally, it didn’t reach the full Senate for a vote. This is part of giving advice and consent on a nominee. They followed the advice of Joe Biden from 1992 when he was a Senator. Less than 8 months after Obama nominated Garland, we had an election.
Garland was considered a moderate. It was also speculated that Garland was chosen to make it harder for Republicans to reject him. So even the nomination would be political to make delaying it difficult for the Republicans. Imagine if Hillary would have won the election. The Republicans could then start the hearings on November 9 after the election. The Democrats would likely say that they should wait until after the inauguration and let Hillary choose her nominee. If the Republicans refused, which they likely would, Obama could then remove Garland’s nomination and not nominate another leaving it to Hillary to nominate someone.
All of these possible scenarios and then Trump won the election. Now the Democrats, for the first time in history filibustered a nominee to the Supreme Court. So the Republicans did as Harry Reid did and removed the filibuster from Supreme Court nominees also known as the nuclear option.
All of these games don’t sound like a house of congress that is supposed to a more deliberate body that is less contentious. These games, and you can choose which to blame, or blame both, make the Senate look like a play pen full of toddlers. The United States Senate has become an embarrassment.
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