A New Judicial Era

James Coll, City Journal

President Trump’s selection of Judge Brett Kavanaugh to fill the Supreme Court vacancy created by the retirement of Justice Anthony Kennedy was met with the expected Democratic outrage and promises to derail his candidacy. Kavanaugh’s Senate confirmation hearings, scheduled for September, will likely prove the political battle of the season. They will also mark a new era in High Court confirmation hearings: they will take place in a Senate that has done away with the filibuster.

Dating back to the nineteenth century, the filibuster is a procedural device that lets a numerical Senate minority effectively terminate a nomination or legislation by creating, or threatening to create, endless debate. Recognizing that one senator could use the filibuster to hold up the work of the chamber—remember Jimmy Stewart in Mr. Smith Goes To Washington?—the Senate adopted the cloture rule in 1917 to terminate the action. Invoking cloture initially required a two-thirds vote, but the threshold was lowered to 60 votes in 1975.

History shows, however, that a 60-vote threshold is a high hurdle to clear. Over the last 50 years, one party has held more than 60 Senate seats for only three full sessions: 1967-1969, 1975-1977, and 1977-1979. Otherwise, the absence of a one-party numerical super-advantage necessitated a familiar plan for navigating Supreme Court confirmation proceedings: in need of bipartisan support, nominees would appear as moderate as possible.

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