Filibuster Showdown Update

Greg Sargent is reporting that Harry Reid is going to move towards a showdown on judicial filibusters sometime in the next week, perhaps in the next couple of days.

He has a leadership aid saying Democrats have “no choice,” which is pretty much what I’ve been saying as this thing has been developing.

Think of this as a bargaining game, with the goal of (most of the majority) Democrats to get a situation where filibusters are used, rarely, against nominees who are thought by the minority as far out of the mainstream. They don’t want an outcome with no filibusters, because they want to preserve their position when they are in the minority; but they also don’t want more frequent filibusters.* As Republicans push farther and farther from the Democratic ideal point, total elimination of the filibuster becomes a more and more appealing second-best end point.

Blockading three DC Appeals Court seats is, I’ve thought from the beginning, far beyond that line. Thus “no choice.”

Remember, we still don’t know exactly why the Republicans are where they are. They may want Democrats to eliminate the filibuster; in that case, that’s what we’ll get. On the other hand, it could merely be a breakdown in the tag-team voting they’ve used since the summer confrontation to get cloture on nominations, with different sets of at least five (previously six) Republicans voting yes. If that’s the case, then it may just mean that the dozen or so tag teamers will get together and figure out who has to cast the three additional votes needed on these judicial nominees.

If however, Republicans mistakenly thought that they could roll the Democrats on this but don’t want majority-imposed reform (which, after all, would leave them unable to stop any future nominees), then they’ll need to back down, and the question becomes how far. Perhaps they could get a deal in which they only blockade one seat. More likely, they would have to give up the blockade and agree to allow final votes on at least two of the current nominees and a replacement for the other (assuming they want to take their chances with another selection).

(Tweeter Mansfield 2016 reminds us that Democrats want new additional judicial seats, and suggests that could be part of a deal. That’s a deal that I think Democrats should be happy to take, but one which Senate Republican dealmakers, unfortunately, can’t deliver on because it would require House Republicans to go along. It’s worth remember, however, that part of the reason that the DC Circuit’s caseload is comparatively low is that Congress has failed for many years now to add seats elsewhere on the federal bench).

As long as I’m here, I should mention two arguments I’ve made in the past that are relevant to this showdown. One is that I don’t think the Democrats will push ahead with a bare majority of 50 plus Joe Biden; I think they won’t do it without at least 52. I do think they’ll have the votes (as Jennifer Bendery’s reporting confirms) — in fact, I suspect they’ll have 54 of 55, everyone but Levin. But some of the less enthusiastic may only be along for part of the ride; indeed, it’s even possible that some of them might just be bluffing, and that Harry Reid knows he can’t count on them. That’s possible, but I don’t believe it’s true at this point.

The other one is that I really don’t give much weight to minority-party threats that they’ll shut the Senate down after majority-imposed reform. I expect maybe a few display of outrage, but that they’ll fizzle out rapidly.

At any rate, it sure looks like we’ll know more very soon.

*It’s actually more complicated. They may be indifferent about judicial filibusters, but want to preserve other filibusters — and believe that majority-imposed reform on one would lead eventually to elimination of all filibusters. But that doesn’t really change the situation described here.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.