considered to be more reliably conservative than the unpredictable Sandra Day O’Connor, whom he would replace, and liberals were worried. The New York Times ran a story questioning whether Alito’s father really was an immigrant from Italy, and genealogists were hired to investigate the conspiracy theory. (The Italian government eventually presented Alito with a copy of his father’s birth certificate.) His nomination sparked a filibuster attempt by Democrats worried that the Court would shift to the right. Although twenty-five senators, including Joe Biden, Barack Obama, Hillary Clinton, and Ted Kennedy, voted against cloture, the Gang of Fourteen held firm in opposing the filibuster. While Alito was eventually confirmed by a vote of fifty-eight to forty-two, fourteen of his opponents nevertheless voted to let the nomination proceed to a floor vote.
A second nomination that tested the Gang of Fourteen’s compromise was that of Brett Kavanaugh, President Bush’s staff secretary, first nominated to the D.C. Circuit in July 2003. Democrats, incensed that a former Whitewater prosecutor and a close ally of a president they considered illegitimate might sit on the second-most important court in the land, stalled his nomination. After Bush re-nominated him in 2005, he submitted to a second hearing before the Senate Judiciary Committee, and the Gang of Fourteen met to discuss the nomination. Senator Lindsey Graham reported that they couldn’t find “extraordinary circumstances” to oppose him. All but two of the Gang of Fourteen voted for cloture, and Kavanaugh was confirmed by a margin of fifty-seven to thirty-six.
At the beginning of the 113th Congress in 2013, Democrats were eager to fill a number of vacancies on the D.C. Circuit. Republicans negotiated a temporary deal reducing the delays on votes for district court and sub-cabinet positions, and Senator Harry Reid, the majority leader, took full advantage of it, confirming forty-three judges and twenty-seven executive nominees. A few months later, however, to push through Obama’s appointments to the D.C. Circuit, the Democratic majority abolished the filibuster altogether for nominations below the Supreme Court level. Pro-abortion activists were afraid that abolishing the filibuster for Supreme Court nominations would come back to haunt them under the next Republican president, so it was left in place.
More importantly, they changed the rules with a bare majority of Senate votes rather than the usual two-thirds majority—the so-called “nuclear option.” Reid had maligned this method of changing the rules when Republicans were considering it during the Bush administration. The Gang of Fourteen had worried about opening the floodgates to rule changes with only fifty-one votes, and the Republicans had refrained.
After Reid and the Democrats exercised the “nuclear option,” Senator McConnell, the minority leader, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”51 Only a year later, Republicans took back the Senate. Some members wanted to bring back the filibuster, but McConnell persuaded them not to. Limiting their own majority’s influence in that way, given the certainty that the Democrats would eliminate the filibuster again when they regained a majority, would be political malpractice. And those who were squeamish about eliminating the filibuster had to acknowledge that the effect of the rule change had been to return the Senate to the way it had operated prior to 2003, when filibusters were generally regarded as off the table for judicial nominations.
It only got worse for the Democrats when Trump shocked Washington by winning the 2016 election. Moving through the classic stages of grief, Democrats hovered between denial and anger. A “resistance” formed, rioting in the streets, pressing electors to change their votes, and concocting conspiracy theories about Trump and the Russians.
The “resistance” spilled over into the Senate, where Democrats delayed every cabinet nomination. Even without a filibuster, the cloture process became a way to use up the currency of the Senate: floor time. In the six administrations before Trump’s, the majority leader had to file cloture to advance a nomination in the first two years of a presidency only twenty-four times combined. In Trump’s first two years, McConnell had to file cloture 128 times.
The nomination of Neil Gorsuch, submitted eleven days after Trump’s inauguration, went more smoothly than most Senate Republicans had expected. The new administration was still finding its way, dealing with incessant leaks, strong resistance within its own party, and the delayed confirmation of key staff members. The Democrats attempted to misconstrue Gorsuch’s record, most famously seizing on the “frozen trucker” case, in which Gorsuch had ruled that a