Ross Douthat:
The death of the judicial filibuster last week was overshadowed by Syrian airstrikes and White House turmoil, but the moment’s significance was also diminished by its inevitability. Senators made pious noises and partisans bemoaned the state of the republic, but the widespread Washington wisdom was that this was a fait accompli: After decades of “Butter Battle Book”-style escalations in the judicial wars, a minority veto was simply too antiquated, anachronistic and pre-ideological to survive.
Maybe it could have persisted had Senate Democrats played a longer game, but only temporarily; however the Senate voted on Neil Gorsuch, the same forces that doomed Robert Bork and Merrick Garland would have doomed the filibuster hereafter.
Given where we are now, that Beltway wisdom was probably correct. Whether we had to end up here, though, is a harder question. It’s possible that structural forces — the ideological sorting of the parties, the decay of the republic toward an executive-judicial diarchy — were always going to push the filibuster to extinction, no matter whether Bork was Borked or Garland pocket-vetoed. But if agency and contingency have a role in history, there is a crucial turning point that deserves to be remembered: the strange nomination and career of David Hackett Souter.
Under our system, control of the Supreme Court functions as a somewhat delayed reward for winning ideological battles at the presidential level, and then as a check on the next ideological coalition as it’s taking power. Thus judicial appointees of the pre-New Deal era restrained Roosevelt’s liberalism for a time, and the judicial appointees from liberalism’s New Deal-Great Society heyday continued to advance liberal causes even as the Democratic coalition fell apart.
In a similar way, the many Republican appointees from the long Reagan era, 1980-2008, should have constrained liberalism in our own era even as the Reagan coalition cracked and aged and failed. And to some extent they have: In the last eight years the Roberts court reshaped Obamacare even if it didn’t kill it, limited some of the Obama administration’s power grabs and advanced certain conservative goals left over from the Reagan years (on campaign finance and gun rights, notably).
But on issues of burning concern to the Republican Party’s base — abortion above all, and then the gay-rights revolution and religious liberty — the court forged by Reagan and the Bushes has often been an enemy, not an ally, either consolidating social-liberal gains or advancing liberal causes even further. True, Anthony Kennedy sided with religious conservatives in the Hobby Lobby decision and on partial-birth abortion. But on the biggest cases — Planned Parenthood v. Casey, Lawrence v. Texas, Obergefell v. Hodges — and quite a few smaller ones, the post-Reagan Supreme Court has been an agent of social liberalism notwithstanding its many Republican-appointed members.
Kennedy’s role as the swing vote means that most people remember the Bork hearings — and his nomination as Bork’s replacement — as the hinge that led to Casey and Obergefell. But a generally right-of-center justice who swings libertarian on social issues is the kind of figure you would expect to crop up in a roster of Republican-appointed jurists. Kennedy is distinctive, yes — but it was Souter who was the real outlier, Souter who really prevented the long era of Republican appointees from putting restraints on social liberalism, Souter who made today’s judicial battles seem more existential to the right than to the left.
The strangeness of the Souter appointment has been magnified by the pitch of the judicial politics since, but it was strange even then. Basically unknown outside of upper New England, Souter was sold to George H. W. Bush by his chief of staff, John Sununu, and the moderate-to-liberal New Hampshire Republican Warren Rudman as an easy confirmation because he lacked a paper trail. Rudman and Sununu were quite right: Souter was confirmed 90 votes to 9, with only liberal activists and Ted Kennedy offering any substantial opposition.
That opposition would look ironic in hindsight, since once on the bench Souter spent a brief time voting with the conservatives, then cast one of the crucial votes to uphold Roe, then swiftly evolved into as reliable a liberal as Bill Clinton or Barack Obama could have ever hoped to appoint … and then, as the by-then-inevitable coup de grâce, retired under Obama, allowing Sonia Sotomayor to take his place. For Republicans and conservatives, it was the most extraordinary of own goals — as if Obama had been persuaded by, say, Ben Nelson or Joe Lieberman to appoint a jurist who turned out to vote like Samuel Alito.
