The Filibuster Must Go

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Republicans are on notice:  Democratic Senate Minority Leader Charles Schumer has threatened to stonewall any Supreme Court nominee Democrats consider “out of the mainstream.”

Mr. Schumer says Democrats will fight “tooth and nail” against any conservative nominee and will consider keeping the late Antonin Scalia’s seat open for the next four years. But the only way Democrats stand any chance of challenging the appointment of a nominee is through the continued viability of the filibuster. This is the procedural rule, you may recall, that allows a minority of senators to prevent a full vote absent the consent of sixty members. Mr. Schumer’s predecessor, Harry Reid, did much to injure the filibuster, which now imperils the Democratic minority’s ability to have any voice for at least the next two years.

The Democrats’ assault on this Senate tradition began in 2013, when Mr. Reid and his colleagues failed to collect enough support to force the entire Senate to hold up-or-down votes on nominees to the lower federal courts. Frustrated by his inability to have the Senate’s Democratic majority rubber-stamp President Barack Obama’s judicial agenda, Mr. Reid pursued the so-called “nuclear option,” to ensure that his simple majority could usher any non-Supreme Court nominee through committee and to a full vote without having to confront the pesky objections of Republican detractors.  

To be fair, both Republicans and Democrats have threatened to use the nuclear option for decades, but Senate leaders dared not disturb a generations-deep tradition that protected the minority and required senators to engage in both debate and compromise. It was one of the key features that made the Senate the most venerable deliberative body in the world.

But with his successful assault on the filibuster, Mr. Reid allowed the Senate to become a less regal body, subject to the whims of ephemeral majorities. His short-sighted approach worked in favor of Democrats when they controlled the chamber and the White House, but now that Democrats have suffered substantial losses in a year in which they were heavily favored to win (and now face the unpalatable prospect of further diminishment in 2018), Mr. Reid has retired into obscurity, leaving them with little procedural protection.

The Democrats’ new leader, Mr. Schumer, now makes the convenient argument that he opposed Mr. Reid’s use of the nuclear option, albeit without making any public statements to that effect and having himself voted for the rule change. But Mr. Schumer is smart and politically astute enough to understand that he is in an impossible position: his party led the charge against the most important procedural protection in the Senate, and now that they are in the minority, it will be difficult to stop Republicans from eliminating the filibuster altogether.

Under the circumstances, Republicans should move to eliminate it immediately.  

For while Mr. Schumer once argued that the elimination of the filibuster for lower federal court appointments, along with most other confirmable posts, was necessary (despite, strangely, stating that he “wished it hadn’t happened”), he now argues that the Supreme Court is somehow different. He maintains that the Supreme Court is too important to allow simple Senate majorities to pass judgment without protecting input from the minority party.

I agree with Mr. Schumer, at least in theory. The filibuster is an important senatorial prerogative that allows the chamber to scrutinize those nominated to vital positions with life tenure. It is a protection against the whims of democratic (small “d”) imprudence and insulates the federal courts from the raw ugliness of cyclical politics. In fact, Republican leader Mitch McConnell has repeatedly reminded his caucus of the benefits of the filibuster and its importance to the Senate’s deliberations.

However, it is too late. The damage has already been inflicted by Mr. Schumer and his fellow Democrats, and there is no going back. Mr. McConnell and his lieutenants would be fools, or worse, to allow Senate Democrats to have any say in the appointment of the next Supreme Court justice. While the filibuster would provide an obstacle to any conservative appointee to the high court, such opposition is not insurmountable, and the structural integrity of the Senate’s traditions are more important than any single judgeship. But the filibuster is already dead, and Republicans who wish to romanticize the Senate’s rules to the point of absurdity need to understand that Democrats made the decision on this issue over four years ago. The decision has already been made.

If Mr. McConnell and the Republicans allow Democrats to filibuster the next Supreme Court nominee, they are gluttons for punishment and deserve to lose their seats. It is almost certain that if Mr. Schumer led the Senate, and Hillary Clinton won the White House, Mr. Schumer would be using his argument about the high importance of the Supreme Court to contend that Democrats should abandon the filibuster altogether to circumvent Republican opposition. Actions speak louder than words and Democrats have already shown their willingness to alter the fundamental rules of the Senate to protect their ideological interests. If Republicans fail to abolish the filibuster now, Democrats will take it upon themselves to do so when it is most politically expedient and after Republicans have abdicated any ability to shape the future of the federal bench.

But somehow, even after this attack on the Senate’s rules, Republican leaders remain opposed to further diminishment of the filibuster rule.  And while I understand Mr. McConnell’s concern for the Senate’s traditions and rules, he must not acquiesce to political forces that have already begun to destroy them. Dropping the filibuster altogether is, at this point, an act of preservation. Mr. Reid and his caucus re-wrote the rules when they were in power for the sake of expediency, but now, when they are unexpectedly out of the White House and in the Congressional minority, Democrats expect the Republicans to respect the very traditions they casually swept to the dustbin.

Mr. Schumer’s high and mighty rhetoric about wishing the filibuster remained intact is the product of his own party’s political misfortune, not to mention his willingness to speak with a forked-tongue. While I understand Mr. McConnell’s reluctance to abandon the filibuster in its entirety, Pandora’s Box has already been unsealed.