With typical Trumpian showmanship, Judge Neil M. Gorsuch has been chosen the winner of this season’s Supreme Court Apprentice. Now it’s time for the Senate to start slugging it out over the nominee’s confirmation. And you know what that means: Let’s get ready to obsess about the filibuster!
Even before Trump’s High Court pick was unveiled, senators found themselves swept up in hot and heavy speculation over whether the chamber will get tangled up in that most popular of obstructionist tools. Will Democrats, still bent about Republicans’ stonewalling of Obama’s Supreme Court pick, Merrick Garland, dig in and seriously filibuster Trump’s choice? If so, will they be slammed as obstructionists? If not, will they be dismissed as wimps? Can Republicans peel off enough vulnerable Democrats to meet the threshold for cloture? Which members are likely to break ranks? Most tantalizing of all, at what point might Majority Leader Mitch McConnell get fed up enough to “go nuclear” and end the filibuster altogether?
Of all the Senate’s conventions, none sparks quite the same curiosity, or fury, as the filibuster. The practice is, after all, what imbues individual senators with the power to hold the rest of the their colleagues hostage. (Looking at you, Ted Cruz.) In theory, the filibuster provides for extended debate of an issue until at least 60 members call for “cloture.” In practice, lawmakers need merely threaten a filibuster to put a bill, or a Supreme Court nominee, on indefinite hold out of partisan spite or personal pique. At this point, pretty much everyone in the Senate has an unhealthy love-hate relationship with the process—which is why no one should expect it to be chucked out the window any time soon.
Fun fact for “Hamilton” fans: Senate rules originally made no provision for a filibuster. It came about accidentally thanks to Vice President Aaron Burr, who, in 1805, decided the chamber’s rules should be streamlined. Burr suggested doing away with the seemingly pointless “previous question” motion. As later became clear, that motion (which still exists in the House) can be used to end debate with a simple majority vote. But no one realized this when the Senate dropped the rule in 1806. When filibusters started being used in 1837, the lack of such a motion allowed for endless speechifying. As the practice grew more common through the 19th century, multiple attempts were made to kill it by reinstating the previous question motion. All failed. It took until 1917 for the Senate to establish a process for cutting off a filibuster with a supermajority vote of cloture.
A century later, the filibuster remains a source of controversy.
While enraging those who’d like to see the Senate get more done, it nonetheless remains the minority’s best defense against the tyranny of the majority. And in the case of Gorsuch, it is an especially tasty play for Democrats craving payback for McConnell’s mistreatment of Garland.
So it was that the day before Trump’s big unveiling, Democrat Jeff Merkley publicly vowed to filibuster whomever the president named. The seat in question was “stolen” from Garland and Obama, asserted Merkley, adding, “I won’t be complicit in this theft.” The Oregon liberal is circulating an online petition rallying support for his crusade.
A nightmare for McConnell? Not particularly. Although a powerful stalling mechanism, the filibuster is far from inviolable. It can be—and has been—tweaked, twisted, and restricted to enable the majority to do whatever it deems truly necessary. In January 2013, for instance, then-Majority Leader Harry Reid and Minority Leader McConnell hammered out a package of reforms, many of them temporary, to ease gridlock on Obama’s executive and lower-court nominations. (Among other adjustments, the deal slashed the number of hours of debate allowed for certain categories of nominees and curtailed a lone senator’s ability to obstruct a bill if even a small fraction of his conference backed it.) The reforms, however, proved insufficient for Reid. That November, infuriated with continued GOP foot-dragging, the Democatic leader went quasi-nuclear, effectively ending the filibuster for all presidential appointees save Supreme Court picks. Permanently.
Having set such a precedent, Democrats now fret that McConnell will feel free to take that one extra step and nuke the Supreme Court filibuster—perhaps opening the door to ending legislative filibusters as well.
This is, in fact, what Trump, in an interview with the Fox News personality Sean Hannity last week, said he fully expects of McConnell if Democrats get uppity and try to block his grand plans.
Which is where this cockfight really starts to get fun.
Blowing up the filibuster is something senators on both teams would rather avoid. Getting stuff done is nice, but members of the upper chamber are passionate about their privileges. And arguably no privilege is more central to the Senate’s identity than the filibuster. Without it, life would devolve into something resembling the madness of majority-rule found in the House. For many, many senators, that is simply a bridge too far.
Which helps explain why, when asked about Trump’s enthusiasm for going nuclear, McConnell responded by giving the president the finger—politely, of course. “That’s not a presidential decision. That’s a Senate decision,” he told one interviewer. To another he explained, “Senate rules are a matter for the Senate, and a lot of other people have opinions.”
No matter how grumpy he gets or how much pressure he faces, McConnell is unlikely to be the guy who irretrievably blows up what makes the Senate the Senate. The majority leader has first-hand experience of what it’s like to be in the minority, and he understands that a party’s fortunes can flip unexpectedly. He is also a die-hard institutionalist, loath to futz with his chamber’s traditions and prerogatives. And while he and Trump may be on the same team, the new president’s power-grabby tendencies are enough to make any Senate leader think twice about agreeing to relinquish any sort of institutional leverage.
Besides, McConnell has other, less dire options. (In a body with rules as impenetrable as the Senate’s, there are always options.) The conservative Heritage Foundation, for example, has been lobbying for McConnell to use the “two-speech rule” as an alternative to going nuclear. Under Senate Rule XIX, a member is limited to two floor speeches on each question to arise during a legislative day. Now, a legislative day can drag on for any number of calendar days. All leadership has to do is “recess” rather than “adjourn” the chamber to keep the clock running. (There’s some dispute as to whether confirmation debates follow the same clock as legislative debates, but that is precisely the sort of arcana Senate experts live to haggle over.) With the two-speech rule, Heritage argues, McConnell could keep a legislative day open until every opponent of Trump’s nominee had used up his or her two speeches. Then debate could end, and the train could roll on.
A gimmick along these lines would, admittedly, be more labor-intensive and time-consuming than simply blowing the filibuster to smithereens. It would undoubtedly irk conservative activists and give the antsy new president a frustration-induced nosebleed. But McConnell has proved himself patient, methodical, and gifted at the long game. Count on him to look for a way to confirm Gorsuch with minimum disruption to the Senate’s preferred methods of doing business.
And if that means Trump has to cool his jets and accept that not everything in Washington is going to run on his timetable, well then, all the better for McConnell and the Senate.
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