Opinion

Gorsuch’s Confirmation Is A Victory For Senate Procedure

REUTERS/James Lawler Duggan/File Photo

Sen. Jeff Flake Republican Senator, Arizona
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Lost in the procedural debate surrounding the nomination of Judge Neil Gorsuch is the fact that the Senate confirmed an eminently qualified jurist to the Supreme Court. Instead of highlighting Judge Gorsuch’s knowledge and respect for the law and his remarkable record of cooperation and consensus building on the federal bench, the conversation has been dominated by the decision to filibuster his nomination.

That is a shame.

The Senate is a legislative body bound by tradition, and often frustratingly so. That is the beauty of this deliberative institution.

Our Founders had the wisdom to create a Senate with a strong minority to serve as a check on runaway power and to preserve our limited form of government. But while they understood the perils of an unfettered majority and the necessity of consensus, they also recognized the importance of collegiality to get things done.

The Senate’s rules have long reflected these values, though in recent years the actions of senators have not. The decision to filibuster a highly-qualified judge nominated by a recently-elected president broke with the spirit of the Senate’s rules. It was not only unjustified – it was unprecedented.

Many on the other side of the aisle cite the decision not to take up the nomination of Judge Merrick Garland as sufficient cause for their filibuster. Judge Garland was certainly qualified, but the majority’s decision to put a hold the nomination during the heat of an election year was not inconsistent with longstanding senate practice.

According to an article by law professor Jonathan Adler in the George Mason Law Review, it has been more than eight decades since a Supreme Court vacancy occurring during a presidential election year has been filled prior to election day. This was a practice embraced by presidents of both parties, and was a tradition that then-Senator Joe Biden vigorously defended on the Senate floor.

For much of that time, it was routine to confirm qualified Supreme Court nominees with overwhelming bipartisan majorities. But starting around 2003, Senate Democrats began insisting on a 60-vote threshold for confirming judicial nominees they characterized as outside of the mainstream. This label is of course subjective, and has been used to impugn the records of otherwise qualified judges.

The level of unprecedented obstruction of judicial nominees was elevated in 2006 with the attempted filibuster of Justice Samuel Alito’s nomination to the Supreme Court. Fortunately that filibuster was unsuccessful, but the attempt further eroded the foundations of bipartisan cooperation on Supreme Court nominees.

From the time Judge Gorsuch was nominated, I have promised to do what it takes to secure an up-or-down vote on confirming him to the Supreme Court. When my Democratic colleagues chose to filibuster his nomination this week, I followed through on that promise.

By voting to change the Senate’s rules, we have now made de jure what was de facto prior to 2003 when the filibuster was virtually never used on presidential nominations. Changing the rules was never my desired outcome, but I am glad that a qualified, mainstream jurist will now take his seat on the Supreme Court.

Jeff Flake represents Arizona in the United States Senate.