Karma, Gorsuch and the nuclear option

For euphemism, dissimulation and outright hypocrisy, there is nothing quite as entertaining as the periodic Senate dust-ups over Supreme Court appointments and the filibuster.

The arguments for and against the filibuster are so well-known to both parties as to be practically memorized. Both nonetheless argue their case with great shows of passion and conviction. Then shamelessly switch sides – and scripts – depending on the ideology of the nominee.

Everyone appeals to high principle, when everyone knows these fights are about raw power.

When Democrat Harry Reid had the majority in the Senate and Barack Obama in the White House, he abolished the filibuster in 2013 for sub-Supreme Court judicial appointments in order to pack three liberal judges onto the D.C. Circuit Court of Appeals.

Bad karma, bad precedent, he was warned. Republicans would one day be in charge. That day is here and Republicans stopped a Democratic filibuster of Neil Gorsuch by extending the Reid Rule to the Supreme Court.

To be sure, there are reasoned arguments to be offered on both sides of the filibuster question. It is true that the need for a supermajority does encourage compromise and coalition building. But given the contemporary state of hyperpolarization – the liberal Republicans and conservative Democrats of 40 years ago are long gone – the supermajority requirement today merely guarantees inaction, which, in turn, amplifies the current popular disgust with politics in general and Congress in particular.

In my view, that makes paring back the vastly overused filibuster, on balance, a good thing.

Moreover, killing the filibuster for Supreme Court nominations (the so-called nuclear option) yields two gratifications: It allows a superb young conservative jurist to ascend to the seat once held by Antonin Scalia. And it punishes for the reckless arrogance of Reid and his Democratic majority.

A major reason these fights over Supreme Court nominations have become so bitter and unseemly is the stakes – the political stakes. The Supreme Court has become more than ever a superlegislature. From abortion to gay marriage, it has appropriated to itself the final word. It rules – and the normal democratic impulses, expressed through the elected branches, are henceforth stifled.

Why have we had almost half a century of massive street demonstrations over abortion? Because the ballot box is not available. The court has spoken, and the question is supposedly settled for all time.

The Gorsuch confirmation is a bitter setback to the liberal project of using the courts to ratchet leftward the law and society. However, Gorsuch's appointment simply preserves the court's ideological balance of power.

Wait for the next nomination. Having gratuitously forfeited the filibuster, Democrats will be facing the loss of the court for a generation.

This story was originally published April 8, 2017 at 5:01 AM with the headline "Karma, Gorsuch and the nuclear option."