U.S. Senate filibuster rules change today may spark regrets tomorrow
It was probably inevitable we would end up here, with the scrapping of a Senate rule that lowers the threshold to end debate over a Supreme Court nominee from 60 votes to a simple majority.
That table was set back in 2013, when then-Senate Majority Leader Harry Reid, D-Nev., pushed through a rules change that allowed cloture on presidential appointees and federal district and appellate court judges, but specifically not Supreme Court nominees, with a simple majority.
Back then, I supported Reid’s move, because the unusually high number of filibusters staged against President Barack Obama’s nominees hindered the operations of the executive and judicial branches.
“But that bit of politics doesn’t change the fact that the filibuster has been abused — by both parties — and that doing away with it for nominations is a good thing, a long-overdue thing, and, ultimately, the right thing,” I wrote then.
I acknowledged in the same column that the move was not without its risks, assuming a Republican won the 2016 election and Kentucky Sen. Mitch McConnell took over as majority leader. McConnell himself warned Democrats: “You will no doubt come to regret this, and you may regret it sooner than you think.”
Yup.
Sen. Dean Heller was discomfited by the Reid-instigated change in 2013, too: “This is a sad day for the United States Senate, and it’s a scary day for Nevada. While today we are discussing nominations, what assurances are there that today’s changes will not apply to future legislation?”
Present Heller was more sanguine, voting for the rules change Thursday. But Past Heller has a point: What assurances do we have? Pretty much none: Article 1, Section 5 makes clear that each house of Congress may determine the rules of its proceedings. That means the filibuster could be eliminated entirely, should the majority so decide.
The utility of the filibuster is that it forces members of both parties to work together to form consensus, to ensure policy has broad support. That’s one of the reasons why the Senate was invested with the power of advice and consent, and why President George Washington referred to the Senate as a “cooling saucer.”
The only problem? In our hyper-partisan age, the cooling saucer is rapidly becoming a dorm room hot plate.
The end result of Thursday’s rules change is that President Trump’s Supreme Court nominee, Neil Gorsuch, will get an up-or-down vote, and likely win confirmation to the court. And that’s as it should be. Even controversial nominees such as Robert Bork and Clarence Thomas got a vote.
In fact, the Senate’s real dysfunction was manifest in the case of appeals court Judge Merrick Garland, whom President Obama nominated to the seat Gorsuch will eventually fill. McConnell and his fellow Republicans didn’t use procedural tools or change rules to thwart Garland’s nomination. Instead, they simply ignored the nomination, pretending Obama wasn’t really the president. Unlike the rules changes of 2013 and Thursday, that disgraceful action will leave an indelible stain on the Senate.
And while Reid is getting the blame for Thursday’s rules change, it’s worth remembering two things. First, Reid specifically didn’t change the rules for Supreme Court nominees when he had the chance (although it’s easy to see him doing so, if he were still leader and the roles were reversed).
And two, Thursday’s change was McConnell’s doing, not Reid’s.
Just as I said in 2013, Republicans took a risk Thursday: Suppose a Democrat wins the White House in 2020, and that party takes the Senate, too. The next liberal nominee will need only a simple majority for confirmation, notwithstanding Republican objections.
As Past McConnell said, “you will no doubt come to regret this, and you may regret it sooner than you think.”
Contact Steve Sebelius at SSebelius@reviewjournal.com or 702-387-5276. Follow @SteveSebelius on Twitter.