'Nuclear option' fallout? More extreme
U.S. justices, experts say
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[April 06, 2017]
By Andrew Chung
WASHINGTON (Reuters) - A Republican-backed
Senate rule change expected on Thursday could make it more likely that
presidents will pick ideologically extreme U.S. Supreme Court nominees
with little incentive to choose centrist justices, experts said.
With a deep partisan divide in Washington, Democrats are using a
procedural tactic called a filibuster to try to block confirmation of
President Donald Trump's Supreme Court nominee Neil Gorsuch in the
Republican-led Senate.
Majority Leader Mitch McConnell has threatened to change long-standing
rules in the 100-seat Senate if the Democrats succeed with the
filibuster in order to prohibit the tactic against Supreme Court
nominees. That would mean such nominees could be confirmed by a simple
majority rather than needing to first muster a 60-vote super-majority.
Experts said the rule change, called the "nuclear option," could produce
an ever-more ideologically polarized Supreme Court. Over the years with
the Senate narrowly divided, the filibuster rule has meant that
presidents have needed to make appointments who could win at least a few
votes from the other party.
For the court, the prospect of a filibuster has shaped the way
presidents pick nominees, said Stephen Wermiel, a Supreme Court scholar
at the American University Washington College of Law.
"Although it has not been widely used, the idea that it was there as a
deterrent to presidents appointing justices who might be considered
extreme has been a significant factor," Wermiel said.
Republican Senator John McCain, a defender of Senate traditions, warned
of the consequences of the rule change, though he said he would
reluctantly support the move.
"We will see more and more nominees from the extremes of both left and
right," McCain said. "I do not see how that will ensure a fair and
impartial judiciary. In fact, I think the opposite will be true, and
Americans will no longer be confident of equal protection under the
law."
Republican Senator Lindsay Graham said Supreme Court nominees "are going
to be more ideological, not less" with the rule change, which he warily
supported.
'LAST SHRED OF BIPARTISANSHIP'
The nuclear option would erase "the last shred of bipartisanship in the
Senate confirmation process," said Senate Democratic leader Chuck
Schumer, who led the filibuster against Gorsuch.
Elimination of the filibuster for Supreme Court nominees could matter
most with the next vacancy on the nine-seat court after Gorsuch, who was
nominated by Trump to replace Justice Antonin Scalia, who died last
year. Three current justices are 78 or older: liberal Ruth Bader
Ginsburg is 84; conservative Anthony Kennedy, who sometimes sides with
the court's liberals in big cases, is 80; and liberal Stephen Breyer is
78.
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The U.S. Supreme Court building seen in Washington May 20, 2009.
REUTERS/Molly Riley
Having more justices who are ideologically extreme would make
compromise among them harder and lead to rulings the public may view
as based more on a political agenda than the law, said University of
Massachusetts, Amherst political science professor Paul Collins,
co-author of a book on Supreme Court confirmation hearings.
If confirmed as expected on Friday, Gorsuch would restore the
court's 5-4 conservative majority. Overturning the landmark 1973 Roe
v. Wade ruling that legalized abortion nationwide may become more
likely if there is no filibuster to moderate the choice of future
court nominees, Wermiel said.
Without a filibuster, a future Democratic president with a
Democratic-led Senate could feel free to name a justice from the
dogmatic left. The result would be a court even more polarized than
the current one already is perceived to be, said Brookings
Institution think tank expert Russell Wheeler said.
"An ideologically-driven administration would eschew
middle-of-the-road judges," Wheeler said. "They would stack the
court with ideological soulmates."
Trump advisor Leonard Leo said the best way to avoid extreme
nominees is through the electoral process. Trump made it clear
during the 2016 presidential campaign he would pick from a list of
potential Supreme Court nominees that he made public, and the voters
elected Trump, Leo said.
"People knew or should have known what they were getting when he was
elected president," Leo said.
(Reporting by Andrew Chung; Editing by Kevin Drawbaugh and Will
Dunham)
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