Apr 06 2017

Whatever It Takes

In 2005, I was part of the Gang of 14 because I thought the United States Senate was about to hit rock-bottom when it came to the treatment of judicial nominees. Qualified nominees to the Courts of Appeals were routinely being filibustered, turning years of precedent on its head.

Gang of 14 Members agreed they would put the weapon of the filibuster down, reserving it for only the most “extraordinary circumstances,” and return to a more traditional, regular order. The Memorandum of Understanding the Gang of 14 produced wasn’t perfect, but it represented the best traditions of the Senate in that it offered everyone the opportunity to cool the temperature and start over anew.

Years before the Gang of 14, the Senate had overwhelmingly voted in support of noted conservative judges like Antonin Scalia (98-0) and noted liberal judges like Ruth Bader Ginsberg (96-3). It didn’t matter that Scalia had a track record of conservative writings or that Ginsberg had been a general counsel for the ACLU. Senators and Americans alike – regardless of political party or ideology – knew that both were exceptionally bright, well-qualified and deserving of confirmation to the highest court in the land.

The days when qualifications reigned supreme seems like ages ago.

With little warning, live bullets in the judicial nomination wars were once again fired in 2013 when then-Majority Leader Harry Reid and the Democrat-controlled Senate decided to change the rules and abolish the 60-vote threshold for all presidential nominees except Supreme Court nominees.

Ironically, the rules change championed by the Democrats actually ended up paving the way for President Trump’s most controversial Cabinet selections – Attorney General Jeff Sessions, Secretary of Education Betsy DeVos, Director of the Office of Management and Budget Mick Mulvaney and Secretary of Health and Human Services Tom Price. The elimination of the 60-vote threshold allowed these individuals to take office without having to receive a single Democratic vote.

Today we find ourselves preparing for the latest battle as we debate and vote on the nomination of Judge Neil Gorsuch to the Supreme Court. This is the biggest, most high-stakes confrontation yet and will likely bring the confirmation wars to a close. When this battle is complete – for better or worse – a simple majority will likely be all it takes to confirm a judge to the federal bench.

Judge Gorsuch’s record is impeccable and President Trump knocked it out of the park by selecting him for this position.

He has served on the Tenth Circuit for over ten years and out of his more than 2,700 decisions, only one of them has been overturned. During his meetings with senators on both sides of the aisle and in the Senate Judiciary confirmation hearings, his impressive qualifications, temperament, and legal background were on full display.

Well, what about President Obama’s nomination of Judge Merrick Garland? He’s a fine and highly qualified man, but Democratic complaints that he was denied fair treatment by the Senate fall on deaf ears.

I met with him in my Senate office and told him that to move forward with his nomination would be in violation of the Biden Rule. In 1992, then-Senator and later Vice President Joe Biden warned the Administration of President George H.W. Bush to not bother sending a Supreme Court nomination to the Senate because the political season was already underway. It was wise counsel then and remains so today.

The Biden Rule is also backed by precedent in the Senate. It’s been more than 80 years since the Senate last filled a Supreme Court vacancy that arose in a presidential election year.

Justice Scalia died on February 13, 2016, after voters had already gone to the polls and cast their votes in two presidential primaries. Clearly, the presidential election season was well underway.

President Obama won the 2008 and 2012 presidential elections and according to our Constitution and earliest writings about the intent of our Constitution from our nation’s Founders, he was entitled to select qualified nominees to the Supreme Court.

I never agreed with the legal philosophy of his nominees – Justices Kagan and Sotomayor – and don’t agree with them today. But they were qualified, competent, and deserving of appointment to the highest court in the land.

Today, Democrats in the Senate should not deny President Trump the same respect and authority given to President Obama and previous presidents. They should honor the election of President Trump just as I and others honored the previous election. Nothing more, nothing less.

Judge Gorsuch is qualified, competent and ready to serve. If he cannot get eight Democrats to vote for cloture (ending a filibuster) on his nomination, then I doubt any Republican nominee could.

I’m a traditionalist and I don’t want to change the rules of the Senate. But Judge Neil Gorsuch is going to be on the Supreme Court, and I’m prepared to do whatever it takes to put him there.