Well, it happened: Mitch McConnell invoked the dreaded nuclear option to overcome a Democratic filibuster of Judge Neil Gorsuch.
Whenever longstanding norms are set aside, there is a question of whether they served a useful function to begin with. Some liberals and conservatives alike have argued that the filibuster for Supreme Court nominees was already a dead letter. Indeed, there’s an argument that all the ritualistic bipartisanship surrounding the confirmation process had become a pointless façade—that the Court is a political institution like any other, and that our processes might as well reflect this.
This change in Senate rules promises to have far-reaching consequences. If they only need to satisfy the majority party in confirmation hearings, future nominees might feel free to offer more partisan answers to senators’ questions, instead of sticking to the bland “I will be fair to both sides” generalities that we have become accustomed to. And as Jonathan Adler has pointed out, presidents might now feel free to elevate more colorful or controversial figures to the bench.
In other words, some of the norms and niceties that once characterized the Supreme Court nomination process might now be swept away entirely. There are some upsides to this—more honest and straightforward debate, less evasion about what is really at stake.
But norms and niceties that seem inconvenient or anachronistic can be more important than they appear. Dinner parties might be more interesting if everyone said what they really thought of the food and ate it however they pleased. But we adhere to etiquette because we know that it makes it less likely for the party to dissolve into a brawl.
The ideal of a nonpartisan Court exists to protect the rule of law. That ideal might seem superficial and phony. But we undermine it at our peril.