Will Lugar’s loss lead to a crisis in the Senate?
“The most important and alarming facet of Lugar’s defeat,” writes Jonathan Chait, is that one of Indiana State Treasurer Richard Mourdock’s key arguments against Sen. Richard Lugar was that Lugar had voted to confirm Elena Kagan and Sonia Sotomayor for the Supreme Court. This is a step towards breaking one of the last, and perhaps most important, social norms of the Senate: That “in the absence of corruption, lack of qualifications, or unusual ideological extremism, Democratic presidents have always been allowed to pick liberal justices, and Republican presidents conservative ones.”
Chait sees “the frightening outlines of a future systemic crisis” here. But I might rephrase that a bit: I see the the outlines of a necessary systemic crisis leading to an overdue set of procedural reforms in the Senate.
It’s clear that the nominations process is broken, and has been for some time. Conservatives believed this during the Bush years: Sen. Bill Frist, when he was majority leader, famously tried to abolish the filibuster on judicial nominations. Liberals have come to the same view during Obama’s presidency -- in part because it’s gotten worse. As Marge Baker of People for the American Way has written:
Once being confirmed by the Judiciary Committee—usually without opposition—President Obama’s circuit court nominees have waited a staggering average of 136 days for a vote from the full Senate, compared to just 30 days for President Bush’s nominees at the same point in his presidency. For district court nominees, historically confirmed quickly and easily except under the most extraordinary of circumstances, the average wait after committee approval has been 90 days under Obama, in contrast to 22 days under Bush.
Speeding the path for nominees was part of the deal that Sens. Harry Reid and Mitch McConnell struck in 2010 to avert Democrats from pursuing more far-reaching reforms in the Senate. But it didn’t solve the problem: the nomination process remains gummed up. And so, in his 2012 State of the Union, Obama took the unusual step of asking the Senate “to pass a rule that all judicial and public service nominations receive a simple up or down vote within 90 days.”
All this, I think, might prove to be prologue for a decisive showdown on the issue. Imagine Obama wins a second term and Democrats hold the Senate -- perhaps because Lugar’s loss lets them mount a pick-up in Indiana. Then, a vacancy arises on the Supreme Court. If the vacancy comes from the liberal side of the Court -- say, Ruth Bader Ginsburg chooses to retire -- that’s likely to go relatively smoothly. But if it comes from the conservative side of the Court -- imagine Anthony Kennedy stepping down -- it won’t.
Obama nominates a well-qualified, broadly liked, moderately liberal replacement. And Republicans filibuster him. And keep filibustering him. And perhaps Obama even proposes a second nominee, who also gets filibustered. And, eventually, Democrats, who will not take kindly to the idea that they’re no longer allowed to confirm nominees to crucial positions, use the GOP’s intransigence as an opportunity to rewrite the rules on nominations, protecting almost all of them from the filibuster.
Wouldn’t it be hard for them to do that after bitterly protesting Republican efforts to do something similar in 2005? Perhaps. But on the other hand, Republicans will face the same charges of hypocrisy for having tried eliminate the judicial filibuster in 2005. And behind closed door, both Senate Democrats and members of the administration think that the nominations process is deeply broken, and that if they could somehow fix it, they would have done something important to help future administrations -- both Republican and Democrat -- govern more effectively.
I’m not saying this is the most likely outcome. And it’s certainly not my preferred outcome — as I’ve said many time, I’d like to see bipartisan rules reform that phases in. But given the level of frustration I hear on these issues, and the way the two parties are likely to react to something as high-stakes as changing the balance of power on the Supreme Court, I’m not sure it’s a particularly unlikely outcome, either.
To put it another way, imagine a historian looking back from that crisis. It would all seem so obvious as a historical narrative: Republicans almost did it in 2005. Then Democrats thought about doing it in 2011. Then Obama called for the Senate to do it in 2012. And then, in 2014, it just happened. We’re getting closer and closer to dramatic reforms in the Senate. The question, at this point, is less whether they’ll happen than when they’ll happen, and who will be in power when they do.