Flat White

Fake news and appointing judges

8 July 2018

4:59 PM

8 July 2018

4:59 PM

I have made a point of reading dozens and dozens of different mainstream media accounts of the recent retirement of Justice Anthony Kennedy from the Supreme Court of the United States (so news sites, blogs, public broadcasters, big newspapers and the like, including those based in the US, those based in Australia and those in other countries). All of them went on to talk about the implications of President Trump’s power to nominate Kennedy’s replacement and how that would work. And almost without exception these media sources at some point talk about how the filibuster requirement or safety-valve for the Kennedy replacement had been removed by the Republicans, so that it will be much easier for President Trump to get his nominee confirmed by the Senate and onto the US’s top court – thereby moving that court noticeably towards interpretive conservatism, less judicial adventurism and in a word ‘rightwards’.

But here’s the thing. The bare assertion so many times repeated that it was the Republicans who changed the rules on Supreme Court judicial appointments is one part truth and nine parts deceptive obfuscation or prevarication or cheerleading for the leftist Democrats. You could be forgiven for describing it as ‘fake news’.

Let me explain. To start, a filibuster is a procedure within the rules of the US Senate that makes it easier to block something. There are 100 Senators and so normally to stop something on a straight up vote those opposed would need 51 votes. In the US this is quite possible as the President’s party quite often does not control, or have a majority in, the Senate. A filibuster is where you stall a vote from happening, and in the old days that meant a Senator actually had to keep talking. These days it’s just a procedural ploy. And back in, say, 2005 when then Senator Barack Obama voted to filibuster the confirmation vote on George Bush’s Supreme Court nominee Samuel Alito the other party needed 60 Senate votes ‘to break the filibuster’. Put differently, 41 Senators could stop the President’s nominee from being voted on by the full Senate. The filibuster massively empowered the minority party in the Senate.

Now that had been and remained true until November of 2013. That was when the then Senate Majority Leader Harry Reid, a Democrat, let me stress, opted to change the filibuster rules for most Cabinet and nearly all judicial nominees in the US. Reid altered the Senate precedent to make it by simple majority or 51 votes. This removal of the filibuster was known as the ‘nuclear option’ and was strongly opposed by the Republicans at the time, and even by a fair few Democrats. They wanted to keep the filibuster. Nevertheless Reid and the Democrats made this change for just about all Presidential nominees save for Supreme Court ones. For those the filibuster was kept in place, meaning for them you still needed 60 votes – a supermajority.

Now go forward to February of 2016 when US Supreme Court Justice Antonin Scalia died. Obama was then still President but things had shifted in earlier midterm elections and the Republicans now controlled a majority of the Senate. And of course the Senate can block or reject any Presidential nominee it wants. The Democrats started this ‘politicising the Supreme Court nominations’ back when they rejected President Reagan’s nominee Robert Bork and both sides of US politics have played that game since. So blocking Obama’s pick was hardly new. That said, the Republicans in the Senate decided they wouldn’t just reject President Obama’s nominee, they decided they wouldn’t even consider it until after the 2016 Presidential election. And then Trump beat Hillary, to the surprise of most observers. A few months later, in April 2017, the Democrats opted to filibuster President Trump’s Supreme Court nominee, Neil Gorsuch.

Up to this point, let me stress, all inroads into the filibuster had been made by the Democrats. Indeed Joe Biden had even suggested before the Trump-Hillary election that the filibuster should go on Supreme Court picks. So given all that, and especially what Harry Reid had done in blowing up the filibuster for virtually all but Supreme Court nominees, Republican Senate Majority leader Mitch McConnell reciprocated. What Reid had done to the Republicans in order for Obama and the Democrats to get a bunch of lower judicial appointments through, the Republicans doubled down on in April 2017. They removed the filibuster even from Supreme Court nominees. This was a sort of revenge being served very cold indeed response.

Now different people will have different views on whether there should ever have been a supermajority requirement for Presidential nominees in the first place, or whether it ought always to have been by majority vote of the Senate. Personally, I’m a majoritarian and don’t like the filibuster. Others find more attractive the argument for this sort of ‘checks and balances’ super-majoritarian type procedure. That said, surely in life what’s good for the goose ought to be good for the gander.   No one familiar with this bare history could plausibly place on the Republicans the unilateral blame for the fact that the filibuster on Supreme Court Senate confirmations of nominees had been removed. In fact, it seems pretty clear to me that more of the blame for that dispensing of the filibuster (for good or for ill) ought to lie at the feet of the Democrats.

And yet I did not read a single mainstream media source that did anything other than suggest that the removal of the filibuster on President Trump’s pick to replace Kennedy was anything other than a Republican initiative. Indeed the implication was often that the Republicans were somehow gaming the system.

All this makes me wonder about news reports I know less about. Is everything these days in the mainstream media filtered through a left-wing lens? Unfortunately that’s probably just a rhetorical question in 2018.

James Allan is Garrick Professor of Law at the University of Queensland.

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