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Tuesday, April 4, 2017


 All Republicans need to do is tell Democrats that they’re not allowed to filibuster Supreme Court nominees anymore.



The filibuster has a fatal flaw — and Republicans are ready to expose it

Senator Dianne Feinstein, a California Democrat, close her eyes as the judiciary committee voted on Supreme Court nominee Neil Gorsuch.
CHIP SOMODEVILLA/GETTY IMAGES
Senator Dianne Feinstein, a California Democrat, close her eyes as the judiciary committee voted on Supreme Court nominee Neil Gorsuch.
By  Globe Staff 
Democrats now have enough “no” votes to sustain a filibuster against President Trump’s Supreme Court nominee, Neil Gorsuch. But Gorsuch is likely to get confirmed anyway, because the filibuster has a fatal and inherent flaw — and the Republicans are ready to expose it.
That Republican counter-attack is sometimes called the “nuclear option,” as if the Republicans are going to have to employ the deadliest weapon to secure victory. But actually it’s not difficult at all. All Republicans need to do is tell Democrats that they’re not allowed to filibuster Supreme Court nominees anymore.
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Here’s the key thing to understand: the filibuster isn’t mentioned in the US Constitution or written into statute. It’s just a rule that Senators have chosen to impose on themselves. It’s a hoary anti-majoritarian Senate tradition, whereby 41 Senators have the power to block action on a bill, even if 59 of their peers support it.
And if you’re thinking “wait, won’t the Democrats also try to filibuster this rule change?,” they can’t. That’s the genius of the Republican plan. Rule changes can be insulated from the filibuster.
So if the 51 Senate Republicans stand together to affirm that filibusters can no longer be used against Supreme Court nominees, then Gorsuch will get a straight up-and-down vote. Which should mean a speedy confirmation.
This raises an obvious question for Democrats, though: what’s the point? Why filibuster if you’re unlikely to change the outcome? Worse, what if by using the filibusteryou end up provoking a rule change that weakens your ability to filibuster future Supreme Court nominees?

And for now it looks like Democrats want to make a dramatic show of their opposition, even in defeat. That will certainly play well with their base. And if it blunts future cooperation in the Senate — well, there hasn’t been much of that anyway.
Also, there’s the Merrick Garland saga. Remember, now-former president Obama was still in the White House when the death of Justice Antonin Scalia created this Supreme Court vacancy. He picked a widely-respected replacement, Garland, but for the better part of a year, Republicans simply refused to hold any hearings — much less votes. That bitter experience has made Democrats less eager than to compromise on Gorsuch.
In the end, though, perhaps the surest reason Democrats are willing to risk the “nuclear option” is because they recognize that the filibuster is already dead when it comes to judicial appointments. Heck, Democrats themselves made a similar rule change in 2013, eliminating filibusters for lower court nominees when they were getting tired of Republican obstruction.
Even if Democrats decided to hold their filibuster fire this time, it wouldn’t do them any good. They’d just trigger a rule change when the next court opening appears.
All of which points towards what may be the deepest question in all this: Where does all this rule-changing stop?
At what point will the majority party — Republican or Democrat — stop tinkering around the edges and eliminate the filibuster altogether? Not just for lower court judges, not just for Supreme Court nominees, not just for Presidential advisors but for everything, including major legislation.
That’s been the slow but sure trajectory of the last 100 years. Before 1917, there was basically no way to block a committed filibuster. But when a piddling group of 12 Senators blocked a key priority of President Woodrow Wilson, the Senate raised the threshold, so that two-thirds of the Senate could stop a filibuster and move on to a vote. Several decades later, they tightened the rules again, so that only 60 votes were needed.
And in recent years, as minority parties have come to rely on the filibuster more and more, majority leaders seem to be getting more comfortable with the idea of doing away with it altogether.
Should we reach that decisive day — when the filibuster becomes a relic of Senate history — it could radically alter the pace of US politics: opening a fast lane for legislation and affording a big, initial advantage to whichever party decides to make this dramatic, and surprisingly simple, change to Senate rules.
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