Judge Gorsuch is now a U.S. Supreme Court judge but his confirmation by the U.S. Senate did not come without controversy.
Talk of the use of the "Senate filibuster" and the "nuclear option" has been front page news for a few weeks.
So I thought I would explain these processes as well as the implications for the long-term health of the Senate.
This discussion is not limited to the United States although the Senates in the U.S. and in Canada function differently.
I know that there is great skepticism about the Senate as an institution.
I have defended the role of the Senate a number of times and I know that my arguments are met with skepticism.
Most of the cynicism about the Senate comes from a conflation of the failure of some senators to behave in a fashion appropriate to the role: non-partisan, morally and ethically above reproach and as a real representative of the common good.
Both the Canadian and American Senates are, in their way, houses of sober second thought (although the term is really only used to describe the Canadian Senate).
The idea of sober second thought symbolizes the notion that in a democracy, popular sovereignty can go wrong. Laws can be passed that are reactionary and may have long-term consequences for different groups or regions of a country. The second chamber is meant to check and balance the House of Representatives (in the U.S.) or the House of Commons (in Canada).
The U.S. has an elected and equal Senate. There are 100 seats representing 50 states and senators are elected to six-year terms.
In Canada, there are 105 seats divided equally among the regions of Canada plus six seats for Newfoundland and one each for the territories (24 for Ontario, 24 for Quebec, 24 for the West and 24 in the Maritimes) and Canadian senators keep their appointments until the age of 75.
In both cases, the Senate chambers are meant to exist somewhat above the political fray.
The longer appointments are meant to provide some latitude to the Senate to make less popular decisions.
Obviously Canadian senators enjoy much more latitude as they are essentially appointed far beyond the generally accepted age of retirement.
Without doubt, and despite the attempt to pull the senators outside of the short-term political melee, both the Canadian Senate and the U.S. Senate have acted in a political fashion for many years but recently one might argue that both Senates have become even more partisan. This development is problematic for the long-term health of the institution in both countries.
In the U.S. over the last few weeks, the appointment of Judge Gorsuch has put the partisan fight in the Senate into the spotlight.
Both the passing of legislation and the appointment of Supreme Court judges require 60 votes in the Senate.
This number ensures that a simple majority is not enough to pass a bill or to appoint a judge to the most important position in the land. One of the mechanisms to ensure that a law or nomination is brought to the floor of the Senate is the filibuster.
The filibuster is used by the minority members of the Senate who try to keep the debate going long enough to stop a vote from happening.
The only way to get the vote to the floor is to invoke cloture, which requires 60 votes.
Therefore, 41 Senators can block a vote if they don't vote for cloture.
This rule exists in order to make sure that the Senate acts through consensus rather than a majoritarian model.
Since the announcement that Gorsuch would be the Republican nominee to the court, the Democrats have threatened to use the filibuster in the Senate to stop the Gorsuch appointment.
With equal vehemence, the Republicans have said that if the Democrats filibuster, the Republicans would invoke the nuclear option, which essentially allows them, with a simple majority vote in the Senate, to change the Senate rules.
In essence they could get rid of the filibuster for Supreme Court appointments. Despite the fact that they knew that they were walking the fine line, the Democrats filibustered and the Republicans changed the rule.
Both parties lamented the move but Chuck Schumer, Senate Democratic leader, put it best when he said: "In 20 or 30 or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court, a day when we irrevocably moved further away from the principles our founders intended for these institutions: principles of bipartisanship, moderation and consensus."
