There are many people to thank for the coming accession of Neil Gorsuch to the Supreme Court. Donald Trump for winning the election. Hillary Clinton for losing it. Mitch McConnell for holding open the high court seat through 2016, resolute and immovable against furious (and hypocritical) opposition from Democrats and media. And, of course, Harry Reid.
God bless Harry Reid. It’s because of him that Gorsuch is guaranteed elevation to the court. In 2013, as Senate majority leader, Reid blew up the joint. He abolished the filibuster for federal appointments both executive (such as Cabinet) and judicial, for all district and circuit court judgeships (excluding only the Supreme Court). Thus unencumbered, the Democratic-controlled Senate packed the lower courts with Obama nominees.
Reid was warned that the day would come when Republicans would be in the majority and would exploit the new rules to equal and opposite effect. That day is here.
The result is striking. Trump’s Cabinet appointments are essentially unstoppable because Republicans need only 51 votes and they have 52. They have no need to reach 60, the number required to overcome a filibuster. Democrats are powerless to stop anyone on their own.
And equally powerless to stop Gorsuch. But isn’t the filibuster for Supreme Court nominees still standing? Yes, but if the Democrats dare try it, everyone knows that Majority Leader McConnell will do exactly what Reid did and invoke the nuclear option — filibuster abolition — for the Supreme Court, too.
Reid never fully appreciated the magnitude of his crime against the Senate. As I wrote at the time, the offense was not abolishing the filibuster — you can argue that issue either way — but that he did it by simple majority. In a serious body, a serious rule change requires a serious supermajority. (Amending the U.S. Constitution, for example, requires two-thirds of both houses plus three-quarters of all the states.) Otherwise you have rendered the place lawless. If in any given session you can summon up the day’s majority to change the institution’s fundamental rules, there are no rules.
McConnell can at any moment finish Reid’s work by extending filibuster abolition to the Supreme Court. But he hasn’t. He has neither invoked the nuclear option nor even threatened to. And he’s been asked often enough. His simple and unwavering response is that Gorsuch will be confirmed. Translation: If necessary, he will drop the big one.
It’s obvious that he prefers not to. No one wants to again devalue and destabilize the Senate by changing a major norm by simple majority vote. But Reid set the precedent.
Note that the issue is not the filibuster itself. There’s nothing sacred about it. Its routine use is a modern development — with effects both contradictory and unpredictable. The need for 60 votes can contribute to moderation and compromise because to achieve a supermajority you need to get a buy-in from at least some of the opposition. On the other hand, in a hyper-partisan atmosphere (like today’s), a 60-vote threshold can ensure that everything gets stopped and nothing gets done.
Filibuster abolition is good for conservatives today. It will be good for liberals tomorrow when they have regained power. There’s no great principle at stake, though as a practical matter, in this era of widespread frustration with congressional gridlock, the new norm may be salutary.
What is not salutary is the Reid precedent of changing the old norm using something so transient and capricious as the majority of the day. As I argued in 2015, eventually the two parties will need to work out a permanent arrangement under which major rule changes will require a supermajority (say, of two-thirds) to ensure substantial bipartisan support.
There are conflicting schools of thought as to whether even such a grand bargain could not itself be overturned by some future Congress — by simple majority led by the next Harry Reid. Nonetheless, even a problematic entente is better than the free-for-all that governs today.
The operative word, however, is “eventually.” Such an agreement is for the future. Not yet, not today. Republicans are no fools. They are not about to forfeit the advantage bequeathed to them by Harry Reid’s shortsighted willfulness. They will zealously retain the nuclear option for Supreme Court nominees through the current Republican tenure of Congress and the presidency.
After which they should be ready to parlay and press the reset button. But only then. As the young Augustine famously beseeched the Lord, “Give me chastity and continency, only not yet.”