Thursday’s showdown at the Capitol has been heralded by such melodramatic rhetoric — a miasma of transparent flip-flopping and brazen hypocrisy sullying virtually every senior senator, from both parties — that two genuinely meaningful consequences of the moment may be hard to appreciate.
The first is more obvious: The views of the political minority will never again matter when filling the confirmation-required government job with by far the biggest and longest-lasting impact on the lives of Americans.
The second is less apparent: Senators have a ready rationale to forswear scorched earth tactics now that Republicans have matched Democrats in exercising the “nuclear option” a single time. And for the rest of this Congress, they are actually on course to debate policy without further parliamentary warfare — because the power to create a 60-vote test for all bills and amendments will remain untouched.
Even as he was setting the launch codes for neutralizing the power to filibuster potential Supreme Court justices, the only nomination still subject to supermajority scrutiny, Majority Leader Mitch McConnell was vowing unilateral disarmament on the other half of the Senate’s agenda. So long as the Republicans are in charge and he’s in charge of the Republicans, he promised on Tuesday, there will be no change whatsoever to the legislative filibuster.
“Who would be the biggest beneficiary of that right now? It would be the majority, right?” the Kentuckian told reporters. “There’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one.”
His categorical promise — “Correct,” he replied when asked, “Are you committing that under your leadership you will never remove the legislative filibuster?” — is good through the end of 2018 at a minimum, and at least two years beyond. That’s assuming the GOP makes good on its currently strong position for retaining Senate control in the midterm election. (By the start of 2020, when McConnell will turn 78 and be in his sixth year as floor leader, he will presumably have decided whether to seek a seventh term.)
The senator has accrued and sustained power for longer than three decades in part by being a man of his word; he weighs what he’s going to say carefully and then stays true to what he’s said, whether it’s making a private promise to a colleague or a public threat to an opponent. (On the day in 2013 when the majority Democrats under Harry Reid abolished the filibuster for all executive branch jobs and lower federal judgeships, McConnell left no doubt he would do what he’s now doing now if he ever got the chance. “You will regret this, and you may regret it a lot sooner than you think,” he said.)
So the question is not so much, “Can McConnell be trusted?” as it is, “Why did McConnell promise that?”
Stands to reason
There are several reasons why it was in his enlightened self-interest to make such a commitment.
For starters, he and other Republicans leaders are on solid ground in arguing that filibustering a person is fundamentally different from filibustering a bill, and the Senate has historically differentiated between the two.
“People who talk about the slippery slope on the legislative filibuster, I think, don’t understand how the Senate really functions,” offered Majority Whip John Cornyn of Texas.
A nominee, the GOP argument goes, is a take-it-or-leave-it proposition; senators must either come to accept or reject the person’s résumé and record, because indefinite delay cannot change the candidate’s backstory or ideology. In contrast, a piece of legislation can always be amended, redrafted or returned to committee, and so should be subject to a process that compels more tinkering until a consensus commands the support of three-fifths of all senators.
In practice, the Senate has honored this theory far more often than not. While delaying tactics have been used since a group of the very first senators, in 1789, blocked legislation that would have located the national capital on the Susquehanna River in Pennsylvania, only in 1949 were Senate rules altered to create the potential for a supermajority requirement on nominations.
The war over judicial nominees has raged since the start of this century, with presidents and Senate leaders from both parties launching attacks and taking fire in more or less equal measure. But before Judge Neil Gorsuch, only two people in the past four decades had to take a parliamentary path to the Supreme Court that included a successful motion to invoke cloture.
A Democratic filibuster of William H. Rehnquist to be chief justice was set aside with 68 votes in 1986, and the party’s effort to blockade Samuel A. Alito Jr. was overcome with the votes of 72 senators in 2006.
But during that time, several hundred cloture petitions had been filed to break filibusters against passing legislation, making alterations to those measures and simply opening debate on a bill — about half the time heralding a lasting impasse, a cursory review of the record suggest, but also about half the time presaging a path to a deal.
Rolling the dice?
Working within those parameters is a chance McConnell says he’s willing to take, probably because the political risks for him and his party could be greater than the alternative.
For one thing, the status quo is not going to prove problematic very often over the short term.
McConnell will retain the ability to move the most ambitious aspects of President Donald Trump’s for-now-stalled legislative program without having to assemble 60 votes, because any tax overhaul or health care law replacement would be granted special budget reconciliation rules, setting a speedy timetable and simple majority threshold for Senate passage.
For another thing, McConnell has his own reputation to worry about.
He’s already assured a mixed place in the history of majority leaders for making one of the most provocative strategic wagers in years, and reaping a huge reward from it. He sacrificed a big part of his renown as a steward of the Senate’s prerogatives and powers when he abandoned more than a century of precedent and decreed the shelving of President Barack Obama’s nomination of Judge Merrick Garland to the court.
But he became a GOP hero by holding the seat open for a year so he could make a major 2016 campaign issue out of the Supreme Court’s ideological balance, the result being that a continued Republican Senate majority and a GOP president are now about to install a comparably conservative successor to the late Justice Antonin Scalia.
Finally, the sentiment of his colleagues seems to be as McConnell describes it.
Regardless of all the partisan disdain and weakened standards of comity, freshman senators and long-timers share a pride in perpetuating the Senate’s unique position in the federal system, and so don’t want to do away with the last procedure that preserves that singularity. They blanch at becoming “House members with six-year-terms,” an apt description of what their work would be like in an entirely majoritarian Senate.
Mainly from the 37 Republicans who have been around long enough to know Senate life under Democratic control, but also from the 15 who have arrived in the past three years, there’s also a palpable disinterest in doing away with powers they might seek to invoke routinely as soon as a future election reverses today’s balance of power.
Of course, sentiment in a Senate GOP of the future could be very different from what it is today, as the membership evolves and the daily partisan blistering leaves more and more scars.
That’s one reason why a 20-year veteran of the caucus, Susan Collins of Maine, is working to assemble a large bipartisan group of senators willing to swear fealty to the legislative filibuster forever.
And it’s one reason why a member of the Democratic leadership, Patty Murray of Washington, says she’s ready to trust McConnell but not relax.
“I hope he’s able to stick to that,” she said of the GOP leader’s promise. “But this place can change in ways that are hard to predict.”