Thank you. This was my question too.
The author of the linked article wants to avoid court-packing, and reduce the amount of partisanship in confirmation fights. I’m not clear on how having it happen every two years reduces partisanship.
I think part of that was that Obama wasn’t going to feel any pressure no matter what - he was a lame duck President.
The GOP took a calculated risk, and it paid off. They thought the next President would nominate a better candidate. I.e. they thought “she will” - it turned out that “he will”. The WaPo author seems to think that is a problem.
Regards,
Shodan
Part of the reason that the senators never felt any pressure is because they had the plausible deniability of “Well, there never was a vote, so it wasn’t my fault the nomination failed; talk to the guy who never called for a vote!” But requiring them to hold a vote forces the issue. Now, they have to deal with, “Yeah, okay, I voted against 7 nominations in a row…” And they have to justify each of those votes. Sure, some hyper-partican voters will just accept “He’s a Libtard Nazi Commie Fascist!” as a generic reason to vote against anyone The Idiot in The White House nominates, but not everyone will be so complacent.
But the point is, they must hold a vote. Make it automatically scheduled for Day 30 after the nomination, with an option to hold it earlier if the senate so chooses, but on Day 30, come hell or highwater, the vote is held, and anyone not voting is officially recorded as an abstaining vote. “Hey, sorry, I missed 7 important votes in a row” would probably make them look even worse than just voting “No”.
Theoretically there was a 60 vote requirement in the past, but it was simply not done. Look at Clarence Thomas. Probably the most brutal confirmation fight in my lifetime and he was confirmed by a 52-48 vote. Nobody thought to filibuster.
Even Roberts, Alito, Kagan and Sotomayor all received significant support from the opposing party, even though we pretty much knew how they would vote. Not so with Gorsuch. He was well qualified, but the opposing side made no bones about voting against him because of his conservatism, a statement that was never uttered before because it was all about qualifications.
And now it is even worse as the battle lines are pitched for or against the new nominee even though we don’t even know who he or she is. The Supreme Court has made itself a political branch by involving itself in issues it has no right to be in. As such, we will continue this charade.
As far as the OP’s proposal, it has no chance, even if it was a good idea. The party in power will not give up a chance to nominate a solid conservative/liberal at each point in time. The rules will be “waived” each time.
No party stays majority or minority forever.
Right now the odds are pretty good that after the 2020 elections, the Democrats will control both branches of the legislature as well as the executive branch. As others have noted, the popularity of these types of schemes is pretty high in Democratic circles right now because they’re the minority, but that would change dramatically if they took over power in 2020. As I see it, if you’re a Republican, you’re negotiating from a position of strength right now, and if you also favor this type of reform, now is the time to get it.
If they don’t hold a vote, then what happens? According to the OP’s proposal the nominee is automatically seated. So there is no requirement that the Senate actually hold a vote.
Under this proposal, Trump could nominate someone ultra right wing, say Rick Santorum, who is on record claiming that states have no power to legalize same sex marriage, even if they want to. Let’s also say that McConnell supports Santorum but only 20 other Senators support him. All McConnell has to do is delay the vote for 31 days and Santorum is seated on the Supreme Court despite not having anywhere near a majority of support in the U.S. Senate.
Such a system would cause serious constitutional concerns as it is very unclear how simply not holding a vote constitutes “advice and consent” of the Senate.
This seems to be a non-issue. The entire reform scheme involves a constitutional amendment as it is.
IMO, the reason presidents have been getting less deference is an inevitable consequence of the outsize role the SC has come to play, as compared to prior norms. There is no way to have a court which has this type of role in society to not be the focus of intense partisan wrangling.
The only way to end that would to be to make a different type of constitutional amendment, specifically one which would eliminate judicial activism. If judges had less freedom to legislate their own views, they wouldn’t have that much impact, and would be the focus of less intense struggling. But that’s not going to happen.
I think he means that Collins et al in particular are the swing votes right now, but would not be the swing votes if it was a 60 vote requirement.
I think you overestimate the electoral harm that will come to some Senator who votes against a well-qualified nominee in this day and age. Gorsuch was just such a nominee, but almost all Dems voted against him anyways. They’ll almost all vote against the next nominee too. It won’t matter.
As was stated in the OP, I believe.
Can “judicial activism” even be defined in a way acceptable to all sides? The way I’ve seen it used, it usually means "Decisions made by “the other side”.
Given that it would take a Constitutional amendment in any case, no reason not to patch that at the same time (e.g. failure to either confirm or explicitly reject a nominee within X amount of time (90 days sounds about right) shall be taken as the former).
Should have read the rest of the thread first; GMTA. Well, GMTsortaA – I went with a longer time frame on the theory that it allows the Senate to wait if the vacancy falls at a time that can be legitimately considered close enough to the election to defer to the outcome.
Currently, the nomination expires at the end of the Congressional term.
See my edit in response to reading Left Hand of Dorkness’ comment – I figure that if the end of the term falls within a 90-day deadline, then it’s a legitimate case of “too close to the election” as opposed to illegitimate Turtlehead bullshit.
Then they have to take full responsibility (all of them individually, not just a single leader as in the Garland case). The “Party of Personal Responsibility” should be down with that. 
Poland is in the midst of a constitutional crisis (and feud with the EU) over a law imposing a retirement age on judges. Those not already highly familiar can Google that up and point out differences between the Law and Justice (rightist populist, not entirely different from Trumpist) party’s law and Rubin’s proposal.
But the simple bottom line in both cases is the legislative and/or executive trying to reduce the relative power of the independent judiciary relative to a somewhat (or very in case of the US) long running constitutional system. If the legislature/executive gets to appoint more judges (either by packing the courts in number or term limits) it has more power.
You can decry the Senate’s change of its own rules to gain partisan advantage, eliminating the filibuster. It’s a thin ‘reed’ to rest on IMO to focus in on the GOP doing it for USSC when Democrats had just done it for <USSC, but let’s save the partisan food fight on that. The point is that in both cases the Senate was changing its own rules, not legislating itself new power over the judiciary.
Not true. Republicans filibustered Abe Fortas’ nomination for Chief Justice by LBJ until Fortas withdrew his name from consideration (Fortas’ initial appointment as an associate justice went smoothly).
I’m fine with that, I just don’t think it’s a sufficient deterrent. For my evidence, I point to how easily, almost casually, most of the Senate Dems voted against Gorsuch, and are already planning to vote against whoever President Trump selects next. They have not, and will not, suffer any political pain for doing so. Republicans are witnessing this and learning that there will be no harm to them in voting against future Sotomayors or Kagans in similar fashion.
What about early retirements or deaths in office? Could retirements still be used to game the system? If not, and a person could only fill out the remainder of the term of someone who died or resigned, who would want the job if there were only a couple of years left?
What if a filibuster had to be a real filibuster, if not in the sense of a speaking one, at least in the sense that no other business could be taken up in the Senate? It seems like there is a much higher chance of paying for it at the polls if it is done for less than dire reasons, much like shutting down the government, but it could still be done for good enough reasons.
Poland is in a crisis because the change is retroactive and a good chunk of the judiciary is being ousted immediately. If we put in mandatory retirement ages, we’d phase it in or make it a requirement only for new justices. We needn’t purge the court as it exists right now, which is what Poland is doing.
But in that case, and your other examples, you’re talking about a singe vote on a single person. It’s not too hard to find a reason to justify such a single vote.
But if they tried to do that with multiple nominees over the course of years? Either they recycle the same objections, which starts to look ridiculous after a while, if those objections aren’t legitimate, or they have to keep finding new objections, which would also start to look ridiculous.
Ultimately we’d have to try it to find out which way it would go, but I don’t think we can predict the outcome based solely on a few cases of single votes on single candidates.
But under this proposal, the power to do that would be removed from the Senate. That’s kind of the point, to avoid this sort of gamesmanship. If the Rs want to try to whistle their way past the X-day deadline, then fine, the Ds will just show up on Day X, and vote against the nominee, who then loses because all the Rs are marked as abstentions.