New Nomination Rules and the Kavanaugh Nomination: Consequences for the Senate

The Senate, for the first time in over 200 years, is considering a Supreme Court nominee entirely under a majority process. Brett Kavanaugh is proceeding through the full confirmation process without the threat of a minority filibuster. Even following Justice Gorsuch’s nomination — when there was wide speculation McConnell would go nuclear — his testimony and consideration occurred under the old process in which 60 votes, not 51, were required to cut off debate on a SCOTUS nominee. And despite the incredible allegations and immense media and public interest surrounding Kavanaugh’s nomination, it’s clear the Senate’s norms are adapting to its new procedural reality.

Senate rules changes have consequences broader than simply modifying process or sequence. They change how the game of politics itself is played. The tactics and strategies appropriate under one set of rules may be unnecessary or even detrimental under another. That’s why under the Senate’s new confirmation rules for Supreme Court nominees, we are watching a new game being played in the Senate. In particular, reducing the cloture threshold from 60 to 51 has shifted the confirmation coalition from (most often) a bipartisan one to a partisan majority. And altering the coalition needed for confirmation fundamentally changes the tactics required to get there.

Last week, during Judge Kavanaugh’s second turn in front of the Senate Judiciary Committee, we watched partisan tactics replace bipartisan consensus building. Under the old rules, Kavanaugh’s performance would have been disqualifying. He explicitly accused Democrats of a political hit job, directly questioning their motives and integrity. He cited several conspiracy theories, including political retribution on behalf of the Clintons, for Democrats’ opposition to his nomination. He interrupted several senators during their questioning, including the Committee’s Ranking Member, Senator Diane Feinstein (D-CA). His behavior ranged from exasperated, to partisan, to disrespectful. Under the old supermajority rules, where several Democratic votes would be needed to invoke cloture, it is impossible to imagine Kavanaugh’s confirmation following his testimony.

But this is a new world, where new political dynamics apply. Overt partisan behavior is no longer immediately disqualifying because only partisan votes are needed to confirm. Last week, both the witness and the members reflected this new procedural environment, as the Senate looked less like the institution renowned for measured deliberation and more like… well, the House of Representatives.

Under the new rules a new game is being played. It is partisan, ugly, and thoroughly out of character for the Senate. And this new process doesn’t bode well for the perceived independence or legitimacy of the Supreme Court. The historical norms and confirmations that bolstered the Court will give way to overtly partisan confirmation processes that erode the bipartisan legitimacy of the Nation’s highest court.