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The Nuclear Option – From Bork To Gorsuch

By now, you are likely aware that Neil Gorsuch was confirmed to the U.S. Supreme Court.  You may also have heard about “a nuclear option” having been deployed to accomplish this result.  That is an odd conjunction: the Supreme Court and nuclear war.  What is going on?

In brief, it is the conclusion of a thirty years’ “war” over the Supreme Court.  The first salvo in that war, was launched by the Democratic Party in its (successful) effort to prevent Robert Bork from being confirmed to the Supreme Court in 1987.  Bork had been nominated by President Ronald Reagan, and was considered, by those of all political stripes, to be a formidable intellectual who would have a significant impact on future Supreme Court opinions.

Why the opposition to Bork?  The deep reason can be glimpsed in the speech given by Senator Ted Kennedy within minutes of the Bork nomination.  While setting forth a parade of horribles (including “re-segregation”) that he claimed would result, Kennedy lead off the list with this: “women would be forced into back-alley abortions.”

So, protecting the “right” to abortion was the top reason the Democratic Party opposed Robert Bork.

Abortion was legalized by the Court in 1973 in a pair of infamous decisions, Roe v. Wade and Doe v. BoltonRoe created the “right” and Doe permitted it to be exercised at any time.  This “right” was invented by the Court from the “liberty” interest in the 14th Amendment to the U.S. Constitution.  To demonstrate why I use the word invented, consider whether anyone could fairly find a right to abortion in the words of the 14th Amendment: government may not “deprive any person of life, liberty or property without due process of law.”

Still, the Supreme Court found that “liberty” includes a right to abortion. This is called substantive due process because by defining “liberty,” the Court converts what is otherwise a procedural clause – “due process” – into a substantive clause by purportedly “discovering” the substantive meaning of terms such as “liberty.”  Judges who subscribe to this philosophy are usually called “judicial activists” because they are actively making policy even where the Constitution does not provide for them to do so.

The Court’s Roe and Doe decisions were then, and are now, widely ridiculed as being unprincipled and not supported by the Constitutional text.  And here is why the Democrats were determined to stop Gorsuch: he is an originalist (as was his predecessor, Antonin Scalia)—that is, one who tries to apply the original meaning of the text (its language and structure)—and the text of the Constitution does not even mention abortion, much less provide a right thereto.  Thus, while judicial activists would continue to uphold Roe, Gorsuch can be fairly expected not to support such a “right.”

In order to stop Gorsuch, Senate Democrats employed a filibuster, that is, an effort to deny an up-or-down vote by the entire Senate on his nomination.  Since under then-existing Senate rules it was necessary to obtain sixty votes to “end debate” and proceed to a vote, a minority of Senators (so long as they numbered at least 41) could hold up final action by continuing the debate, i.e., filibustering.

The filibuster had not been needed to defeat Bork, whose nomination sank after the Senate Judiciary Committee failed to vote in his favor.  But the stakes were higher with Gorsuch because of developments during the thirty years separating the two nominations.

Those thirty years saw repeated efforts to block nominees to the Supreme Court.  For instance, when George W. Bush was president, Senate Democrats threatened to filibuster many of his judicial nominees – they knew those nominees were originalists, not judicial activists.  When Republicans gained control of the Senate and threatened, in retaliation, to change the rules to eliminate the filibuster, the Democrats cried foul, and the Republicans backed down.  But as was consistently the case during the thirty years war, rules once declared inviolable, were later tossed aside when convenient.  Thus, when Democrats re-gained the Senate majority and Republicans were blocking some of President Obama’s nominees, the Democrats employed the “nuclear option” and changed the rules to eliminate the filibuster for all Presidential nominees, excepting only Supreme Court nominees.  What followed?  When President Obama nominated Merrick Garland during a presidential election year, Republicans refused to hold confirmation hearings, saying whoever was elected president should choose Scalia’s successor.

This brings us to the week of April 3.  Then for the first time in American history, 41 Democrats engaged in a filibuster against a vote on a Supreme Court nomination.  In response, Republicans changed the rules and abolished the filibuster – as the Democrats did in 2013 on all other nominees, and as Democratic Senators had pledged to abolish vis-a-vis the Supreme Court when next they gained control of the Senate.  The full Senate then voted to confirm Gorsuch.

Though usually called the “nuclear option,” the elimination of the filibuster could more accurately be called the “constitutional option,” for the Constitution does not provide for the right to filibuster Supreme Court nominees, any more than it provides for a right to abortion.

The use of the nuclear or constitutional option ends the thirty years’ war of procedural maneuvers aimed at denying a vote on a nominee in order to protect the “right” to abortion.