SCOTUS: The Nuclear Option is Not Enough

U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)

On January 31,  president Donald Trump nominated federal appellate judge Neil Gorsuch to fill a vacancy on the US Supreme Court created nearly a year before by Associate Justice Antonin Scalia’s death.

More than two months later — nearly 14 months since  Scalia’s passing and after 13 months of Republican stalling and refusal to even consider former president Barack Obama’s nomination of appellate judge Merrick Garland — the US Senate is finally set to vote on Gorsuch’s nomination once it clears a final procedural hurdle (more on that below).

Unlike most politically engaged Americans, I have no strong opinion on the character or qualifications of Neil Gorsuch (or, for that matter, Merrick Garland). Because they’re appointed for life, Supreme Court justices tend to develop minds of their own rather than slavishly fulfilling the wishes of the presidents who nominate them or the parties they claim affiliation with.

I do, however, have strong and very negative opinions on the melodrama attending the whole process.

Chief Justice John Marshall was nominated to his position on January 20, 1801. The Senate stalled, declining to confirm Marshall and pushing president John Adams to substitute someone else. The matter dragged on … for seven whole days before a vote. Marshall took his seat on the court less than two weeks after Adams asked him to serve.

Two weeks in 1801, when news traveled at the speed of horse. Fourteen months in 2016-17, when news travels at the speed of light. What’s wrong with this picture?

What’s wrong with it is that the Senate is a dilatory, time-wasting, procedurally hidebound body that these days walks (at a snail’s pace) every action of significance through multiple hearings in front of various committees before acting.

The final procedural hurdle I mentioned above is called “cloture.” It’s a vote to end debate, wrap the matter up and give Gorsuch the Senate’s final,  for real, thumbs up or (or down).

Under current Senate rules cloture requires 60 votes. Republicans, with a bare majority in the Senate and no hope of winning cloture, are threatening “the nuclear option” — a rules change, which only requires a majority, to make cloture itself a mere majority vote.

I don’t think the “nuclear option” is enough. I’m with MacBeth: “If it were done when ’tis done, then ’twere well It were done quickly.”

Instead of changing the cloture rules, why not change the entire confirmation procedure? Put a hard deadline in the rules: On the tenth day following nomination, the nominee receives an up or down vote of the full Senate, period, no exceptions.  Pre-vote committees get that long, and no longer, to do their jobs.

The Constitution calls for the Senate’s “advice and consent” on presidential appointments, not for months or years of screwing around.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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