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Politics & Government

Hatch Calls SCOTUS Filibuster Unprecedented, But Plenty Of History For Judicial Fights

trekandshoot, iStock

To hear Utah Republican Sen. Orrin Hatch tell it, Democrats’ filibuster of Supreme Court nominee Neil Gorsuch is an unprecedented maneuver that goes beyond the pale.  

“The truth is that no Supreme Court nominee has ever been defeated by a partisan filibuster,” he said in a speech on the Senate floor this week.

But some political observers say while that’s technically true, there’s plenty of precedent for the type of obstructionism we’re seeing today.

There was the refusal by Republicans last year to hold hearings for Merrick Garland, President Obama’s pick to fill the vacancy prompted by Antonin Scalia’s death.

But even prior to that, there was the 1987 nomination of Robert Bork, who was defeated by both Democrats and some Republicans who feared he was too conservative.

“That kind of opened the gates for considering ideology and partisanship of judges as they were being confirmed," says Mike Barber, an associate professor of political science at Brigham Young University.

"Since the 80s, there’s basically been a steady increase over time in the amount of obstruction that the opposite party, or minority party, has placed in the way of a judicial nomination," he says. "Not just for the Supreme Court, but lower court justices as well.”

Barber says the immediate impact won’t be as dramatic because Gorsuch is very similar in judicial philosophy to Antonin Scalia. But once Republicans employ the so-called "nuclear option" — requiring only a simple majority to confirm justices — nominees may become more polarized.

“What it does mean is that in the future, I would anticipate Supreme Court nominees to be more ideological than in the past, because there’s no longer a need to win 60 votes, now they only need 51 votes,” he says.

Sen. Hatch says Gorsuch will be confirmed by the end of the week, but that probably won't end the bickering in Washington.

“It’s almost as though there’s a script written, and when control of the Senate changes, they just switch scripts," says Barber. "And they say the exact same things about the other side."


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