A consensus builder changes tunes: Whatever it takes

In 2005, I was part of the Gang of 14 because I thought the U.S. Senate was about to hit rock-bottom when it came to the treatment of judicial nominees. Qualified nominees to the Courts of Appeals were routinely being filibustered, turning years of precedent on its head.

Gang of 14 Members agreed they would put the weapon of the filibuster down, reserving it for only the most “extraordinary circumstances,” and return to a more traditional, regular order. Our memorandum of understanding wasn’t perfect, but it represented the best traditions of the Senate in that it offered everyone the opportunity to cool the temperature and start over anew.

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With Gorsuch nomination to Supreme Court, Senate seems poised to kill a tradition

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Years before the Gang of 14, the Senate had overwhelmingly voted in support of noted conservative judges like Antonin Scalia (98-0) and noted liberal judges like Ruth Bader Ginsberg (96-3). It didn’t matter that Scalia had a track record of conservative writings or that Ginsberg had been a general counsel for the ACLU. Senators and Americans alike — regardless of political party or ideology — knew that both were exceptionally bright, well-qualified and deserving of confirmation to the highest court in the land.

The days when qualifications reigned supreme seems like ages ago.

With little warning, live bullets in the judicial nomination wars were once again fired in 2013 when then-Majority Leader Harry Reid and the Democrats decided to abolish the Senate’s 60-vote threshold for all presidential nominees except Supreme Court nominees.

Ironically, the rules change championed by the Democrats ended up paving the way for President Trump’s most controversial Cabinet selections: Attorney General Jeff Sessions, Secretary of Education Betsy DeVos, Office of Management and Budget Director Mick Mulvaney and Health and Human Services Secretary Tom Price. The elimination of the 60-vote threshold allowed these individuals to take office without having to receive a single Democratic vote.

Today we find ourselves preparing for the latest battle as we debate and vote on the nomination of Judge Neil Gorsuch to the Supreme Court. This is the biggest, most high-stakes confrontation yet and will likely bring the confirmation wars to a close. When this battle is complete — for better or worse — a simple majority will likely be all it takes to confirm a judge to the federal bench.

Judge Gorsuch’s record is impeccable. President Trump knocked it out of the park by selecting him for this position.

He has served on the Tenth Circuit for more than 10 years, and only one of his more than 2,700 decisions has been overturned. During his meetings with senators on both sides of the aisle and in the Senate Judiciary confirmation hearings, his impressive qualifications, temperament and legal background were on full display.

Well, what about President Obama’s nomination of Judge Merrick Garland? He’s a fine and highly qualified man, but Democratic complaints that he was denied fair treatment by the Senate fall on deaf ears.

I met with him in my Senate office and told him that to move forward with his nomination would be in violation of the Biden Rule. In 1992, then-Sen. and later Vice President Joe Biden warned the administration of President George H.W. Bush to not bother sending a Supreme Court nomination to the Senate because the political season was already underway. It was wise counsel then and remains so today.

The Biden Rule is also backed by Senate precedent. It’s been more than 80 years since the Senate last filled a Supreme Court vacancy that arose in a presidential election year.

Justice Scalia died on Feb. 13, after voters had already gone to the polls and cast their votes in two presidential primaries. Clearly, the presidential election season was underway.

President Obama won the 2008 and 2012 presidential elections, and according to our Constitution and earliest writings from our nation’s Founders, he was entitled to select qualified nominees to the Supreme Court.

I never agreed with the legal philosophy of his nominees — Justices Kagan and Sotomayor — but they were qualified, competent and deserving of appointment to the highest court in the land.

Today, Democrats in the Senate should not deny President Trump the same respect and authority given to President Obama and previous presidents. They should honor the election of President Trump just as I and others honored the previous elections. Nothing more, nothing less.

Judge Gorsuch is qualified, competent and ready to serve. If he cannot get eight Democrats to vote to end a filibuster on his nomination, then I doubt any Republican nominee could.

I’m a traditionalist, and I don’t want to change the rules of the Senate. But Judge Neil Gorsuch is going to be on the Supreme Court, and I’m prepared to do whatever it takes to put him there.

This story was originally published April 5, 2017 at 5:14 PM with the headline "A consensus builder changes tunes: Whatever it takes."