Schumer Floor Remarks on the ‘Nuclear Option’
Washington, D.C. – U.S. Senator Charles E. Schumer today delivered remarks highlighting the danger of changing the Senate rules and how the Supreme Court will further be an extension of the polarization that plagues American politics today. Below are his remarks:
Mr. President, this past week, the American people have been exposed to a contentious debate here on the Senate floor about the nomination of Judge Gorsuch to the Supreme Court.
The American people have heard many arguments about the Judge’s merits and his shortcomings. They’ve also heard Senators litigate four decades of fierce partisan wrangling over the composition and direction of the federal judiciary.
That debate, that long debate – has informed the current one about Judge Gorsuch. Newer members may not remember all the details. Friends of mine like Senator Hatch probably remember too many of them. Still, the vote on Judge Gorsuch, and the decision by the Majority Leader to move to change the rules, has roped in all of that history.
Now how did we get here?
The truth is, over the long history of partisan combat over judicial nominations, there is blame on both sides. We believe that the blame should not be shared equally between Republicans and Democrats. We believe the Republican Party has been far more aggressive in the escalation of tactics and in the selection of extreme judicial candidates, while Democrats have tended to select Judges closer to the middle. Keep this in mind: the last time a Republican-controlled Senate confirmed the Supreme Court nomination of a Democratic President was 1895.
Nonetheless, each side comes here today in full confidence that their side is in the Right. It was once said that, “antagonism is never worse than when it involves two men each of whom is convinced that he speaks for goodness and rectitude.” So it is today.
My Republican friends feel that they have cause to change the rules because the Democrats changed the rules on lower court nominees in 2013. We believe we had to change the rules in 2013 because the Republicans ramped up the use of the filibuster to historic proportions – forcing more cloture filings under President Obama than during all other presidents combined. More cloture filings under Obama than under George Washington all the way through George Bush.
My Republican friends think they have cause to change the rules because we are about the deny cloture to the nomination of Judge Gorsuch. We believe that what Republicans did to Merrick Garland was worse than a filibuster, declaring, mere hours after Justice Scalia’s death, that they would deny the constitutional prerogative of a President with 11 months left in his term. And as my colleague from Illinois noted, we did not hear two words in the long speech of Senator McConnell: Merrick Garland.
We could re-litigate these debates for the next hour, mentioning everything the Republican leader left out in his remarks. In fact, I’m pretty sure we could argue endlessly about where, and with whom, this all started. Was it the Bork nomination or the obstruction of judges under President Clinton? Was it when Democrats blocked judges under President Bush or when Republicans blocked them under President Obama? Was it Judge Garland or Judge Gorsuch?
Wherever we place the starting point of this long, twilight battle over the judiciary, we are now at its end point.
These past few weeks, we Democrats have given Judge Gorsuch a fair process – something Merrick Garland was denied. My colleagues came into this debate with an open mind. I think many of them wanted to vote for Judge Gorsuch at the outset. So we met with the nominee. We consented to and participated in his hearing.
But over the course of the hearing, during which Judge Gorsuch employed practiced evasions and judicial platitudes, the mood of our caucus shifted. Without so much as a hint about his judicial philosophy, without a substantive explanation of how he views crucial legal questions, all we had to go on was his record. And the more we learned about Judge Gorsuch’s record, the more we didn’t like.
Judge Gorsuch has shown, in his rulings and in his writings, to side almost instinctively with corporate interests over average Americans. He hasn’t shown independence from the president, who so routinely challenges the legitimacy of the judiciary. While he’s made a studious effort to portray himself as thoughtful and moderate, his record shows, far from being the kind of mainstream candidate for the Supreme Court that could earn 60 votes, he may very well turn out to be one of the most conservative Justices on the bench. An analysis of his record in the New York Times showed he’d be the second most conservative judge on the bench, and one in the Washington Post showed he’d be THE most conservative justice, even to the right of Justice Thomas.
For these principled reasons, Judge Gorsuch was unable to earn enough Democratic support for confirmation.
Because of that, the Majority is about to change the standing rules of the Senate to allow all Supreme Court nominees to pass on a majority vote.
It doesn’t have to be this way. When a nominee doesn’t get enough votes for confirmation, the answer is NOT to change the rules, it is to change the nominee. Presidents of both parties have done so in similar situations. On several occasions, Supreme Court nominees were withdrawn because they did not have enough support; one was even withdrawn after a failed cloture vote.
So this week, we have endeavored to give the Majority Leader and my friends on the other side of the aisle a way out of this predicament. We offered them the option to sit down with we Democrats and the president and discuss a nominee who could earn enough bipartisan support to pass the Senate, not one vetted only by far-right, special interest groups.
I came here to the floor, each day, and made an offer to meet anywhere, anytime to discuss a new nominee. I hoped, perhaps naively, that we could discuss a way forward that both of our parties could live with. Unfortunately, there were no counteroffers or discussion offered by the other side…but our offer was meant sincerely.
Democrats and Republicans are caught in such a bunker mentality on this issue that we are just talking past each other. I know that many of my Republican friends are squeamish and uncomfortable with the path we are on, as we Democrats are as well. We’ve reached a point where the level of distrust is so high on this issue that we can’t even sit down and talk. My Republicans friends dismiss as out-of-hand the notion that Democrats will ever vote to confirm a Republican-nominated Judge, despite the fact that there were Democratic votes for both Justices Roberts and Alito to get them over 60, and despite our plangent attempts to convince them otherwise.
But make no mistake about it – for all the back and forth, when history weighs what happened…the responsibility for changing the rules will fall on the Republican’s and Leader McConnell’s shoulders. They have had other choices; they have chosen this one. No one forced them to act; they acted with free will. We offered them alternatives; they refused. They hardly entertained any other possibilities. It seemed that the Republican Leader was, from Day One, intent on changing the rules if he didn’t get his way.
And frankly, this is how so many of our Republican friends have approached the judiciary for a long time. For two decades, they have done whatever it has taken to move the bench to an ideological, far-right position. Independent experts have stated that we have a more conservative Supreme Court than we’ve had in a very long time. Nothing – not even the rules, not even the comity of the Senate – seems to stop them.
When the dust settles, make no mistake about it, it will have been the Republicans who changed the rules. But we take no solace that history will put it on their shoulders…because the consequences for the Senate and for the future of the Supreme Court will be far-reaching.
The nuclear option means the end of a long history of consensus on Supreme Court nominations. It weakens the standing of the Senate as a whole as a check on the president’s ability to shape the judiciary. In a post-nuclear world, if the Senate and the presidency are in the hands of the same party, there is no incentive to even speak to the Senate minority. That’s a recipe for more conflict and bad blood between the parties, not less. The cooling saucer of the Senate will get considerably hotter.
The 60-vote threshold on controversial matters is a hallmark of the Senate. The Majority Leader has said so himself. It fosters compromise, it fosters bipartisanship, it makes the Senate more deliberative – “60-votes” ought to be the epigraph of the Senate. Losing that standard on the Supreme Court, a hugely controversial matter, erodes the very nature of this body.
Mr. President, the 60-vote bar in the Senate is the guardrail of our democracy. When our body politic is veering too far to the right or to the left, the answer is not to dismantle the guard rails and go over the cliff, but to turn the wheel back toward the middle.
The answer is not to undo the guardrails -- the rules -- it’s to steer back to the middle and get a more mainstream candidate.
With respect to the Supreme Court, the 60-vote threshold operates as a guardrail against judicial extremism. When 60 votes – typically a bipartisan supermajority – are required for confirmation, nominees tend to be in the judicial mainstream. The only nominee on the Court to be confirmed with less than 60 votes was Justice Thomas, who is widely recognized to be the most ideological extreme Supreme Court justice.
It will mean the end of any pressure on any future President to nominate someone in the mainstream. When it comes to the courts, the guardrails are being dismantled.
There will be more 5-4 decisions, as our Ranking Member of the Judiciary Committee has pointed out. There will be less faith in the Supreme Court because it will be seen as a political body, an extension of our most divisive debates. And as a result, American’s faith in the integrity of the Court and the trust in the rule of law in America will suffer.
In conclusion, I am disheartened that we are here. In the sweep of history, the Senate has been the place where great, seemingly intractable disagreements in American politics finally give way to compromise, precisely because we have a set of rules that requires it. The story of the Senate is one of fierce debate but eventual cooperation. We tend to pull back when things get too heated, because we all care about this institution and its role in our national political life.
In this case, cumulative resentments from years of partisan trench warfare were too great. Instead of the Senate forcing us to change, Senators have decided to change the Senate. And I worry a great deal about what that means for the future.
Twenty years ago, I think even the most partisan would say that the 60-vote threshold was basically inviolable. Today, it will be gone for all nominations, but at least not for legislation. Now, my friend the Majority Leader has said he has no interest in removing the barrier for legislation. I agree with him wholeheartedly and I take him at his word. I hope that we can get together to do more in future months to ensure that the 60-vote threshold for legislation remains.
But just as it seemed unthinkable only a few decades ago that we’d change the rules for nominees, today’s vote is a cautionary tale about how unbridled partisan escalation can ultimately overwhelm our basic inclination to work together and frustrate our efforts to pull back; blocking us from steering the ship of the Senate away from the rocks.
There’s a reason it was dubbed the nuclear option. It is the most extreme measure, with the most extreme consequences. And while I’m sure we will continue to debate what got us here, I know that in 20, 30, or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court. This is a day when we irrevocably move away from the principles our Founders intended for these institutions: principles of bipartisanship, moderation, and consensus.
Let us go no further on this path.
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