Senate Minority Leader Mitch McConnell is quite right about one thing: if Democrats go nuclear in order to rid themselves of filibusters on executive branch nominations, it probably does make it far likelier that future Senate majorities will do the same with legislation and judicial nominations.
For those of us who want to preserve what’s been good about the Senate, that’s not good news. But the current dysfunctional, 60-vote chamber isn’t what Senate loyalists should be fighting for.
What’s needed, eventually, is one of two things: either the minority party stops abusing tradition by requiring 60 votes for everything or it finds some way to codify a procedure in which filibusters are available but rarely used. The latter turns out to be very difficult; as long as both parties (and individual senators) are trying to exploit every loophope they can find, it’s incredibly difficult to devise rules that don’t eventually boil down either to preserving the filibuster-drenched status quo or a full, House-like majority party rule. And given that choice, we’ll likely wind up eventually with the Senate being a copy of the House. That would leave us with all the malapportioned weaknesses of that chamber with none of the strengths of a legislature in which individual senators, from both parties, can be effective representatives.
But it is possible that Republicans might back off. At least, if they really believe that their choice is to stand down or get nuked. And while Senate Majority Leader Harry Reid is threatening it and says he has the votes, what would really clinch it would be if Carl Levin — reported to be the most reluctant Democrat — publicly announced that enough was enough and laid down a path for Republican to win his vote back.
That path would certainly have to include giving up on “nullification” — the practice of blocking some positions because Republicans don’t want the agencies to function at all. It would also have to include making filibusters rare again on nominations. There’s been a bit of progress on this; for example, a district court judge was confirmed this week on a 54-41 vote without Republicans forcing a cloture vote.
If Levin announces that he’ll vote with reformers, Republicans will know for sure that Harry Reid has the votes if he moves forward. And that will clarify their choice: either accept that the filibuster has to be reserved for only the most intense of their positions or force the issue and start the march to strict majority party rule.
It’s certainly possible that Republicans will choose majority-imposed reform anyway. But if Levin really wants to preserve what’s good about the filibuster, it’s time for him, however reluctant he is, to let everyone know that he’s willing to end it if Republicans can’t live within the Senate norms he supports.