The Gorsuch Filibuster And the Myth of the Apolitical Supreme Court

Edroso says most of what needs to be said about McArdle’s latest entry in the “why, oh why, are Democrats engaging in the same tactics that were a yoooge political success for Republicans?” genre. But since this argument is a little more widespread, I wanted to address this alleged reason why the filibuster of Gorsuch was a bad idea:

The base wants a filibuster of Neil Gorsuch’s nomination to the Supreme Court, even though there is literally no possible tangible end that can be achieved thereby — and even though it may indeed make it harder to block Trump nominees in the future. For instance some future truly awful Supreme Court nominee, one for whom Republicans wouldn’t be willing to rewrite Senate rules in order to overcome a filibuster threat.

Let’s assume for the sake of argument that there is such a thing as a nominee that could command majority support by Republicans for a vote on the merits, but not to blow up the filibuster, although whether this razor-thin slice of prosciutto even exists is dubious. In what sense would this nominee be “terrible”? I think Daniel Hemel and David Herzig identified it: a case in which “a nominee whose views were less extreme or whose credentials were less sterling.” The idea is that because Republicans would be less invested in a more moderate nominee with less elite formal credentials, they might not go nuclear against a Democratic filibuster. This is also almost certainly what McArdle means; after all, as Roy says she’s still outraged that Dems defeated Bork on an up-or-down vote and then approved a more moderate conservative. (You do have to love the fact that McArdle is outraged that Bork was defeated on a bipartisan up-or-down vote, and that the ACA was passed by supermajority party-line vote. It’s almost as if there’s no legitimate way for Democrats to achieve their desired ends!)

The first problem with this argument I’ve already identified: in that scenario the the nominee would most likely fail, like George W. Bush’s nomination of Harriet Miers, because he or she lacked the support of the majority. But let’s say grant that a justice who would win on merits but not on the nuclear option exists. The much bigger problem is that the endgame would be a more formally “qualified” but more ideologically extreme nominee, which is a much worse outcome for Democrats. To state the obvious, how a Supreme Court justice votes is far, far more important than where she got her J.D.. The whole argument is just another iteration of the myth that Supreme Court justice is primarily a technical and not political job. And despite the increasingly desperate and unnecessary credential inflation on the Court, the Supreme Court nomination process has permanently changed because nobody really believes it. After all, if it was true Merrick Garland would be on the Supreme Court now.

The brutal truth is that even if somehow a once-in-a-century, genuinely unqualified candidate like Harriet Miers somehow got on the Court, it wouldn’t really matter much — one Supreme Court vote on its own can’t do anything, his or her opinions would be written by the same kinds of clerks everybody else’s are, and obvious howlers would either be corrected by other chambers when the drafts are circulated or allowed to become part of the United States Reports just like the shoddily-argued opinions written by justices with Harvard J.D.s and extensive experience arguing before the Court are. But, practically, such a person is highly unlikely to be nominated and even if they are you don’t need the filibuster to defeat them. What we’re really talking about is keeping someone with state rather than federal appellate experience and a J.D. from somewhere like Duke or Minnesota rather than Harvard or Yale off the Court. But the idea that this such a person is “unqualified” is very silly. It’s just a story people like to tell themselves about how the Court isn’t really political.