If you think there isn’t enough extremism in American politics, this week’s for you.
If all goes as expected, the week will conclude with the confirmation of Neil Gorsuch as a Supreme Court justice. This outcome is lamentable. The seat was President Barack Obama’s to fill, and Merrick Garland’s to occupy. But as conservative as Gorsuch will likely turn out to be — belying his disingenuous claim that there is “no such thing” as Republican or Democratic judges — that’s not the problem.
The problem is how he’ll almost certainly get there: Democrats will filibuster. Supporters will fail to obtain 60 votes to end debate. And Republicans will employ the once-unthinkable mechanism of the “nuclear option,” and allow Gorsuch’s confirmation, and that of future Supreme Court nominees, to proceed with a simple majority.
This would be a terrible outcome, for the Senate and the country. So here is one last, probably futile, plea:
To Democratic senators wavering on whether to filibuster: Don’t do it. Vote against his nomination, but let it come to a vote. Even if the filibuster for Supreme Court nominations is on life support, you would be better off, substantively and politically, keeping it for now.
To Republican senators wavering on the nuclear option, if it comes to that: Don’t do it. Find some way to forge agreement with Democrats to avoid this outcome — as hard as this will be, post-Garland, because trust is in such short supply.
Like Chekhov’s gun, destined to be fired by the third act once it appeared on the wall in the first, this moment was certain to arrive from the day that former Democratic Senate leader Harry Reid (Nev.) first pulled the nuclear trigger.
Although the two parties had reached a deal to filibuster nominees only in extraordinary circumstances, Republicans were blockading routine, uncontroversial appellate nominees. So Reid and fellow Democrats eliminated the filibuster for executive branch nominations and lower court judges. They preserved the filibuster when it came to Supreme Court nominations.
But anyone who has watched the judicial nomination wars over the past three decades understood that it was just a matter of time and circumstance until an exasperated Senate majority would eliminate the Supreme Court carve-out.
Now that day is upon us. And this move matters because it essentially guarantees that future nominees by presidents of both parties will be more to the extreme, on either side. The real utility of the filibuster is not in its deployment but in the threat thereof.
Imagine — tremble at — the prospect of President Trump’s decision-making if a truly court-changing vacancy arises. Facing a simple majority vote requirement, he will have no incentive to calibrate his choice, every reason to cater to the most conservative elements of his party.
Democrats have been pushed to this point by their understandable anger over the treatment of Garland and the even greater fury of a base that insists lawmakers give no quarter, and threatens to punish those who do.
That approach is shortsighted. If the filibuster possibility remains in place, when the next vacancy comes, Trump and Senate leaders would still have to worry about potential defections from their slim majority in choosing a nominee. So the continued presence of the filibuster could have a tempering effect. And in crass political terms, the cost of exercising the nuclear option would be higher the next time around, when the court’s delicate balance would likely be more imperiled and public attention heightened.
As for Republicans, consider the whirlwind you may be unleashing. This move has consequences — and not only for a future Supreme Court nomination when you find yourselves in the minority, facing a Democrat in the White House.
If you pull this trigger, the pressure will be on — first to overrule the parliamentarian by majority vote when inconvenient rules get in the way of using budget reconciliation to pass legislation by a simple majority; next to eliminate the filibuster for legislation altogether.
And for those who are hoping that the court’s swing justice, Anthony M. Kennedy, may be the next to leave, consider the potential impact on his decision-making of eliminating the filibuster, and thereby empowering the president to pick a more extreme nominee.
So Democrats, who appear to have the votes to block Gorsuch, please rethink. And Republicans, who appear to have the votes to go nuclear, please wait. Take a pause after the first cloture vote and try to work out a deal with Democrats. Then allow an up-or-down vote now, in exchange for a promise not to abolish the filibuster next time.
A hot time demands a cooling saucer, not a deliberate choice to smash the crockery.