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Honorable Mark Sanford

Representing the 1st District of South Carolina

Thoughts on Gorsuch Filibuster

Apr 6, 2017
Blog Post

For the last two centuries, the filibuster has been integral to the tradition of extended debate in the U.S. Senate - a body deliberately designed to move slowly while carefully considering the views of the minority. Unfortunately, this procedural privilege has been increasingly abused - and it's now gotten to a point that it undermines both the institution and the Constitution which established it.

Even though no Democrat opposed Judge Gorsuch’s appointment to the Court of Appeals a decade ago, his current nomination only passed the Senate Judiciary Committee this week by a narrow, party-line vote. Now, Democrats are promising to require 60 votes to allow a final confirmation vote on the floor.

The Constitution allows both houses of Congress to set their own rules, but what if an internal rule presents a conflict with the legislative body’s external responsibilities towards another branch of government as required by the Constitution? This is what we have today. The Senate’s traditions have grown so out of hand that they undermine what the Constitution lays out in the way the Senate should process the nominations of the executive branch. It only requires the “advice and consent” of the Senate - in other words, an up-or-down majority vote by the Senate - for someone the president nominates to be appointed to an office.

Historically, there were no partisan filibusters of judicial nominations before 2003. In 2013, the filibuster was changed to apply only to legislation and Supreme Court nominations. Now we’re about to see the first partisan filibuster of a Supreme Court nominee in U.S. history...and, most likely, the end of the filibuster on nominations of any kind.

That sets up the larger question...does the Democrat’s case against Gorsuch really rise to that level? There’s certainly blame to go around on both sides for how we’ve reached this point, and I think the larger trend is concerning for the political process overall, but “an eye for an eye” leaves everybody blind.

All that said, it appears that Judge Gorsuch will likely be confirmed by the end of this week one way or another. For the sake of the institution and for the health of our political process, I hope it comes in the easier form.