The recently concluded Neal Gorsuch confirmation with its attendant drama stands as another example of the press and certain Senate members distorting facts to make the steps to his confirmation appear historic, highly controversial and unprecedented. These falsifications, now the subject of much public discourse, can be contrasted to a truly egregious attempt 80 years ago to genuinely change the character of the Court .
Much has been made about the “Nuclear Option” being exercised in Gorsuch’s Supreme Court confirmation process. It is alleged that it forever changes the Senate confirmation process. Unfortunately (but typically now-a-days), a fair measure of inaccurate and outright false reporting greatly exaggerated not only what was altered in invoking the “Nuclear Option”, but the practical effect of that change on future Supreme Court confirmations.
There were two things that changed in the course of the Gorsuch proceedings – a Senate tradition, and a Senate rule. The tradition was changed by the Democrats, and the Senate rule by the Republicans.* The tradition was that no nominee to become a member of the Supreme Court has ever been filibustered in the 228 years of our country’s existence. The Senate Democrats broke that tradition and chose to make Judge Gorsuch the first nominee ever to be subject to a filibuster. Subsequent to that action, the Senate voted to change one of their own self-imposed rules. The old rule stated that three-fifths of the Senate (60 Senators) are needed to stop a filibuster on a supreme court nominee and proceed to the confirmation vote. The new rule now states that a simple majority of the Senate is needed to stop that filibuster and proceed to the confirmation vote. Following that rule change, which has been dubbed the “Nuclear Option”, the filibuster was stopped and Judge Gorsuch was then confirmed with a simple majority vote, as was every other Supreme Court justice in US history.
All of the hyperbole, headlines, word choices (e.g. “Nuclear”) proclaiming an unprecedented historical deviation of process with this nomination was completely contrived. As a practical matter, nothing in the prior practice of confirming a new Supreme Court justice has changed. Of course, the confirmation vote of any future nominee cannot now be held up by a filibuster, but up to this point no Supreme Court nominee had ever been filibustered anyway. The only thing different this time around was the churlish behavior of 41 Democrat Senators necessitating a corrective action to restore tradition. Once again, the news media (and many Senators) invented a crisis and falsely built it up as something explosive in nature just to excite emotion. The reality was far more benign.
In 1937, President Roosevelt was frustrated with a conservatively-leaning Supreme Court because they were ruling a number of his New Deal programs to be unconstitutional. Since his party enjoyed overwhelming majorities in both the House and the Senate, FDR devised a plan to turn the Supreme Court in his favor. In an act of deceit and hubris, FDR proclaimed that the existing case load before the Court was too much for them to keep up with, particularly since six of the Justices were over the age of 70. FDR proposed that unless each of the Justices over the age of 70 chose to retire, he would appoint 6 additional Justices to the court, one for each Justice over 70, raising the total from 9 to 15. He would then have the opportunity to choose six liberal Judges. This would create a majority of liberal Judges on the Court, ensuring his policies would not be overturned. In the Senate proceedings that followed to carry this plan to fruition, it was discovered that the Supreme Court was actually quite current with their case load and had been for several years. The allegation that the “elderly” Judges were overloaded was a total fiction put forth by FDR to hide his true intention of simply stacking the Court in his favor all at once. Add to that his implied insult that those Justices over the age of 70 were incapable of efficiently performing their duties as jurists, and FDR lost a fair measure of credibility. Several Senators from his own party turned against him and the plan never made it out of the Democratic-controlled Senate Judiciary committee. FDR’s plan was a direct assault on the core constitutional precept of maintaining three independent branches of government. Just imagine if President Trump proposed that the current Supreme Court members over the age 80 retire (Ginsburg, Kennedy, and soon Breyer), so that he might appoint additional Justices of his own. Compared to FDR’s perfidy, Gorsuch’s nomination proceedings are tame.
* The original Senate rule requiring a three-fifth’s majority (60 votes) for “breaking” a filibuster on judicial nominees was changed by Senate Democrats in 2013 to instead require only a simple majority (51 votes). However, while that change applied to all federal judge nominations, it specifically excluded Supreme Court nominations. The recent modification to that rule by Republicans in 2017 removed the Supreme Court nominee exclusion.