Supreme Court Filibuster? A Mirage Since 2013

(Bloomberg View) -- The Supreme Court filibuster is about to die, and people who should care most about it -- United States senators, who gain individual influence within the Senate from rules that prevent simple majority rule -- evidently do not. 

The Filibuster

Democrats have the votes to defeat Neil Gorsuch by filibuster under current Senate rules, which require 60 votes to defeat a filibuster. I argued last week that if they wanted to defeat Gorsuch and have any hope of making it stick, they needed to make a clear, strong case that they were willing to vote for another (conservative) nominee from Donald Trump but that Gorsuch for whatever reasons was so far from even the conservative mainstream that they were reluctantly willing to block him. That's what Democrats did during George W. Bush's presidency when they used filibusters against selected appeals court nominees while voting for (or at least not filibustering) others, and that's one reason they were able to make a deal with Republicans which preserved the judicial filibuster as a tool for rare occasions.

For the most part, Democrats have done no such thing. While most of them haven't gone so far as to say that they will oppose anyone Trump nominated (as, after all, Republicans did when this seat became vacant during Barack Obama's presidency), they have hinted that this is in fact what they are up to. That's what it means to claim to oppose Gorsuch because of what Republicans did to Obama's selection. It's also what it means to bring up the Trump/Russia scandal in this context. No Senate majority party would ever allow a blockade against any possible nominee, so giving reasons for filibustering which would apply to a potential replacement serve to force Republicans to take action.

Still, at least some Democrats are sort of pretending that Gorsuch is such a special case that he is worth maximum opposition. Which would imply that they might be open to some sort of deal to preserve the filibuster while giving Trump a less extreme conservative pick for the high court.

Republicans, however, seem at least so far to be entirely uninterested in such a deal. Their position is basically that any opposition based on ideology is illegitimate, which matches the preposterous pretense during Gorsuch's hearing that Supreme Court justices are best thought of as neutral arbiters whose personal political views are entirely irrelevant. In reality, of course, if that was their steady position, Republicans would have rapidly confirmed Merrick Garland when Obama appointed him. 

It also appears that absolutely no Republicans are even slightly open to any kind of deal to save the Supreme Court nomination filibuster, let alone to (as I would prefer) restore the filibuster for all judicial selections. They apparently are willing to keep the filibuster around only if Democrats never use it. 

Or, to put it another way: Neither Republicans and Democrats see any distinction between opposing a nominee and being willing to use a filibuster against that nominee. Filibusters are no longer a method of expressing strong dissent; they're just dissent. That means the filibuster is no longer a way of allowing intense minorities to defeat indifferent majorities. It's just an opportunity for any large minority to rule the Senate. 

I've long supported retaining the judicial filibuster. But if Republican senators aren't interested in doing so and Democratic senators are only (perhaps) slightly more open to a deal, then we should all face facts: The judicial filibuster including for Supreme Court nominees died in October 2013, and it's only a procedural quirk that it took this long to get the Supreme Court part of it done.

Which means that all the debates about best Democratic strategy -- yes, including my own -- turn out to be beside the point. If the filibuster is gone the first time it's used, then it doesn't matter at all when it is formally removed.

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So don't call what Mitch McConnell is about to do "nuclear." It's not going to change anything in the Senate that didn't change four years ago. The appropriate metaphor is closer to those toy guns that unfurl "Bang!" banners than it is to anything lethal or momentous. 

The real question for the future of the Senate will be about the legislative filibuster -- still going strong at this point -- and reforms around holds, availability of amendments, reconciliation rules, and other arcane but important procedural questions. That's where the fight will be.  

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

1. Technically, it is the precedents, not the rules, of the Senate which make Supreme Court nominations eligible for filibuster and cloture, and it is the precedents, not the rules, which will be changed by simple majority vote (assuming all goes as it currently appears) to eliminate these filibusters. 

2. It's also similar to the Democratic-led bipartisan defeat of Robert Bork during Ronald Reagan's presidency, although the filibuster wasn't used that time Bork was defeated outright on a final vote. Democrats considered Bork "out of the mainstream," but were willing to confirm his eventual Reagan-nominated replacement, current Justice Anthony Kennedy.

3. A pretense, to be sure, shared by nominees of both parties over the last years.

To contact the author of this story: Jonathan Bernstein at jbernstein62@bloomberg.net.

To contact the editor responsible for this story: Mike Nizza at mnizza3@bloomberg.net.

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