After the nuclear option, what’s next? There really are only two choices to react to the Republican decision to eliminate the Senate filibuster permanently for Supreme Court nominations: mourning or celebration. So for the record, let me begin by saying that Judge Merrick Garland should’ve been confirmed after he was nominated to this seat by President Barack Obama, and that it’s tragic that Judge Neil Gorsuch, who is comparably qualified, will be confirmed in his stead. Then let me tell you how I feel now: I come to bury the filibuster, not praise it. Although I would never have chosen the sequence of events over the last 15 months, I’m happy that it has ended with the death of the filibuster.
The filibuster has cast a long shadow over the Supreme Court confirmation process. It is one reason nominees have morphed from quirky, brilliant, flawed, controversial political figures into cautious, careful, qualified and essentially perfect human beings like Garland and Gorsuch.
Now is the time to bring back the all-too-human nominee, the kind who will be excoriated by the Senate minority who opposes the president as an insufficiently experienced judge or too possessed of interesting, outside-the-box ideas. In a post-nuclear world, such a nominee could be confirmed by straight Senate majority, with few or no votes from the other side.
This will bring us some duds, to be sure, and possible even some wackos. But it could also bring us some great justices — and that’s a trade that, in the light of Supreme Court history, I’m willing to make.
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To get a sense of the kind of justices I have in mind, you need look no further than President Franklin Delano Roosevelt’s greatest appointees, none of whom could be confirmed today if they needed 60 votes.
Justice Hugo Black was a far-left senator whom contemporaries considered the “most radical man” in that body. His solution to the Great Depression was a mandatory 30-hour work week, so employees could share the jobs that still existed. He proposed this extreme progressive plan in 1932 — before FDR was inaugurated and introduced the New Deal.
What is more, Black, an Alabamian who later became a staunch supporter of desegregation, had a secret that would’ve disqualified him from the court if it had been known: He had been an active Ku Klux Klan member, and his membership had helped him get elected to the Senate. My point isn’t that this was OK, because of course it was morally repugnant. Rather, it’s that Black, one of the most creative and brilliant liberal Supreme Court justices of all time, could never have been confirmed under modern filibuster conditions. And if he hadn’t served on the court, our constitutional jurisprudence would be the poorer for it.
Justice Felix Frankfurter was the leading liberal law professor-public intellectual of his age. He had taken positions on basically every public topic in existence from 1910 until he was nominated in 1938. That included active public defense of Sacco and Vanzetti, alleged anarchist murderers who got the death penalty and were certainly guilty at a minimum of providing material support to a major terrorist organization that killed numerous U.S. civilians.
Frankfurter couldn’t possibly have been nominated if his confirmation would have required bipartisan consent. In a post-filibuster world, there’s some chance of nominating people like him. And Frankfurter was, in my estimation at least, one of the handful of greatest judges of the 20th century, an advocate of judicial restraint who consistently stuck with his guns even as the court’s conservative majority turned into a liberal one.
Justice William O. Douglas was even more controversial when nominated than Frankfurter. As head of Roosevelt’s Securities and Exchange Commission, Douglas made his reputation with a virulent, highly politicized attacks on Wall Street and others in the investment community. His ideological stance against corporate capitalism was unmistakable. When he began his term at the head of the SEC, he had himself photographed in his office with a ten-gallon hat and a six shooter on his desk.
Douglas went on to be perhaps the most creative supporter of the living Constitution in the history of the court. His landmark opinion in Griswold v. Connecticut inaugurated the modern right of privacy that in turn animated Roe v. Wade. Conservatives hate him and progressives love him -- but the modern court, and the republic, wouldn’t be the same if he had never served. A post-nuclear Senate would allow the nomination and confirmation of someone like him — or like Elizabeth Warren, his closest contemporary analogue.
Then there’s Robert Jackson, a justice so protean that he was cited enthusiastically by Gorsuch as a model, even though he was Roosevelt’s solicitor general and attorney general. When nominated to the court, Jackson was a deeply partisan figure, completely identified with the Democratic administration he had served so faithfully and long.
Yet once on the court, Jackson defied FDR by dissenting in the Japanese internment case, Korematsu v. U.S. Then he helped do in Democrat Harry Truman by voting against seizure of the steel mills at the height of the Korean War. That vote provided the occasion for Jackson’s most famous judicial opinion, which has become the benchmark for balancing executive power against congressional authority.
These justices were political, aggressive, intellectually brave — and profoundly flawed as human beings. They became great but because of their limits and in spite of them.
I hope that Justices John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan — recent products of our age of nomination caution — will go down in history as great. But I wouldn’t count on it. Greatness involves risk, and the filibuster threat has helped keep judicial nominees essentially riskless. I wouldn’t have chosen the end of the filibuster, especially not the way it actually took place. But now that it’s gone, let’s dance on its grave. Bring on the interesting nominees!
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”