I wrote on Friday about what now looks like a coming showdown in the Senate over Republican obstruction. For more on the chess game involved, see Senate scholar Sarah Binder here and here; she gets into some of the complex calculations involved.
To back up from how it will likely play out to how I’d like it to play out, however: In my view, the best outcome would be a deal that involves some rules change, but doesn’t wipe out the filibuster or establish a strong precedent for majority-imposed reform.
It’s good that Harry Reid has already separated out legislation from nominations (even if the real reason he’s done so is almost certainly because the filibuster is largely irrelevant on legislation as long as divided government persists).
The best deal, however, would require also separating executive branch from judicial nominations. Basically, what’s needed on executive branch nominations is to restore the tradition of allowing the president far wider latitude to choose the personnel in the administration, even while giving senators from both parties an opportunity to use the process to influence policy. In terms of rules reforms, if that’s necessary (and it seems to be), that means retaining the holds and cloture framework — but reducing cloture to a simple majority.
On judges, however, the minority party has a reasonable case in favor of their ability to block some nominations. On this one, Harry Reid and the Democrats should be willing to leave the current rules in place . . . as long as Republicans are willing to restrict themselves to only killing by filibuster very occasional choices. In particular, Democrats should not be willing to accept a full blockage of certain seats (such as what may be a blockade of multiple seats on the DC Circuit court). And Republicans should be willing to go along, because if they don’t, they could lose the possibility of blocking any judges at all.
Compromise, of course, has proven extremely difficult for recent Congresses. But cutting a deal on this one really could be in the interests of both parties.