Adam Jentleson, writing in the New York Times, makes a couple of useful points about the prospect that Mitch McConnell will break the rules to change the Senate rules and eliminate the filibuster for lifetime Supreme Court nominees.
The first worthwhile point Jentleson makes is about simple proportionality. He compares what led up to Harry Reid’s 2013 decision to eliminate the filibuster for lower court nominees and executive branch nominees to what McConnell has so far faced in the way of Democratic obstruction. In other words, has McConnell exhausted his alternatives to going nuclear?
By the time Democrats exercised the nuclear option, Senator McConnell had unleashed nearly 500 filibusters and spent years twisting Republicans’ arms to prevent them from working with Democrats, regardless of the substance of a given issue, in pursuit of his goal of denying President Obama a second term…
…Second, even after Republican obstruction had become a sad fact of Senate life, Senator Harry Reid tried for years to avert the nuclear option. He worked with Republicans such as Lamar Alexander of Tennessee to devise numerous “gentlemen’s agreements” to make the Senate work more efficiently. When those efforts failed, the nuclear option was a last resort.
Even this description doesn’t capture the sick majesty of what McConnell did as both Minority and Majority Leader during President Obama’s term. He took procedural stalling to an unheard of level, on the theory that less could be accomplished by the Democrats if they had fewer legislative days in which to get it done. For this reason, he forced cloture and other procedural votes on things that had been routine Senate business in the past. But, most importantly, when four seats on the D.C. Circuit Court of Appeals opened up, McConnell insisted that the court was too large and the seats should not be filled. He therefore convinced his caucus to filibuster any and all nominees to serve on the nation’s second most important court, in perpetuity and without any regard for the qualifications of individual candidates.
This last gambit was so outrageous that it forced Harry Reid’s hand.
Jentleson’s second key point is that McConnell hasn’t tried to avoid a nuclear showdown at all.
Rather than accept Democrats’ opposition as legitimate, Senator McConnell is dead set on escalation. The view among veteran McConnell watchers is he has already decided to go nuclear. For a man who chooses his words carefully, Mr. McConnell’s saying that Judge Gorsuch will be “confirmed on Friday” is tantamount to saying that he intends to go nuclear if Democrats block the confirmation on the floor…
…The majority leader has made no real effort to avert the nuclear option. To the contrary, he appears to be itching to pull the trigger — and in his insidious way, he wants to convince Democrats that it’ll be their fault when he does.
This is an important thing to keep in mind. If Trump or McConnell wanted to avoid a filibuster, they needed to do what is normally done, which is to consult with the Democratic leadership about which potential nominees they would find objectionable and which they could see their way to confirming. But there was no consultation before Gorsuch was named. It was just assumed that the Democrats would roll over and confirm him despite what the Republicans had done to block Merrick Garland without cause last year.
The Republicans did nothing to avoid a filibuster.
This means either that they were stupid (which is always a strong possibility with this crew) or that they never cared whether Gorsuch was filibustered or not because they intended to confirm him either way.
In the very long term, it will probably benefit the left more than the right not to have a judicial filibuster, both because Democratic presidents will be more common than Democratic majorities in the Senate, and because they’ll be able to get actual left-wingers on the Court rather than whomever can pass through a Republican filibuster.
In the short term, though, the Republicans will be able to overturn Roe v. Wade during Trump’s term in office if a Democrat-appointed vacancy comes open on the Court. In the past, I would have said that this is the last thing the Republican leadership really wanted to accomplish because it would inspire a backlash unlike anything we’ve seen in American politics in living memory. In the past, they could sneak a David Souter on the Court and buy themselves a couple of decades of dedicated activism in the service of an outcome they didn’t really support.
But they may be radicalized enough at this point to want to turn America into Saudi Arabia when it comes to women’s reproductive rights. And when they lose the filibuster as an excuse, they won’t be able to hide behind Democratic obstruction to explain why they haven’t delivered on their promises. This time, Roe will go.
But, of course, this all depends on Mitch McConnell being able to get at least 49 of his 51 senators (not including himself) to vote to kill the filibuster for Supreme Court nominees. Maybe he can accomplish that or maybe he can’t. He could be bluffing or he could just be wrong.
Not everyone in the Republican Senate caucus wants to see Roe overturned. Some are open about about this, but more have been in on the game for a very long time and don’t want to see it end. Still others aren’t eager to mess with the Senate rules in such a fundamental way.
It won’t be easy to actually win the nuclear option vote. I don’t see the outcome as a foregone conclusion.
But, regardless of what happens, on the merits there is no way that it can be sincerely argued that McConnell has faced the same level of obstruction that Harry Reid did, nor that McConnell has exhausted his alternatives.