Senate Minority Leader Charles Schumer (D-N.Y.) could not be more right: “When a nominee doesn’t get 60 votes, you shouldn’t change the rules, you should change the nominee,” he said.
A dozen years ago, in this space, I argued, “It should take 60 votes to put someone on the Supreme Court for life. We should be aggressive and affirmative in making that demand and not shrink from it.”
We now know Neil Gorsuch has fewer than 60 votes.
If he or President Trump wanted to begin to heal the mindless partisanship that too often engulfs the Congress, Gorsuch’s nomination would be withdrawn.
Most Americans favor a 60 vote threshold.
A recent Greenberg, Quinlan, Rosner survey described the situation this way, “Nominees for the Supreme Court currently need 60 votes to be confirmed by the U.S. Senate. The Republican majority in the Senate could propose changing the rules to a simple majority of 50 votes to prevent Democrats from being able to stop the vote with a filibuster.”
Sixty-nine percent opposed this change while just 26 percent favored it.
Some might see bias in this question.
However, over the years, more fairly posed questions elicit quite similar responses.
Some years ago, in a poll we conducted, just 29 percent believed, “When the president nominates a justice to the Supreme Court it should take the votes of 51 of the 100 senators to confirm the nominee and make them a Supreme Court justice.”
By contrast, 69 percent said, “A nominee should have to get the support of at least 60 of the 100 senators.”
A supermajority of the electorate clearly backs a supermajority to confirm a Supreme Court nomination.
Supermajorities are attractive because Americans prefer government by consensus. If a nominee can’t muster 60 votes in the Senate, there is not a sufficient consensus to put that person on the court for life.
The vast majority of nominees who make it to the Supreme Court actually achieve that level of consensus.
Of the 162 nominations to the court in the history of the republic, only seven justices have been confirmed with the support of less than 60 percent of the Senate.
Since 1988, only two successful nominees failed to reach the 60-vote threshold.
Make no mistake; conservative ideologues can make the cut. Antonin -Scalia received 98 votes, John Roberts 78. Warren Burger got 74 votes, and -William Rehnquist 68.
Republicans have vigorously embraced supermajorities. Sen. Orrin Hatch (R-Utah) himself proudly proclaimed his sponsorship of a bill to require 60 votes to raise taxes.
Indeed, the Senate Republican Policy Committee argued, “The Framers put super-majority votes within the four walls of the Constitution, and throughout the years Congress has regularly and unremarkably operated under those super-majority requirements. … Super-majority votes are reserved for matters of special importance … but they are not rarities either. … Spending our children’s inheritance is a matter of special significance that should require an occasional super-majority vote.”
Surely a lifetime appointment to a nine-member court charged with interpreting the Constitution is no less important than a tax increase.
Their current rhetoric notwithstanding, Republicans have no principled attachment to simple-majority rule.
Indeed, it’s become evident that their commitment to “originalism,” to reading the Constitution as it was originally written, is also nothing more than a cover for helping them achieve their political ends.
The Framers would be turning in the their graves if they saw that Senate Majority Leader Mitch McConnell’s (R-Ky.) commitment to his faction was greater than his commitment to his country, as evidenced by his refusal to consider Merrick Garland last year.
Republicans from McConnell to Trump would do well to consider the wisdom of the American people who crave consensus.
If you can’t get 60 votes, don’t offer up the nominee. Bring us together; don’t work to tear us apart.
Follow the Constitution. Seek the advice of the Senate, not just its consent.
Mellman is president of The Mellman Group and has helped elect 30 U.S. senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years.