A key distinction between the Senate and the House of Representatives is that any senator can assert themselves and threaten to prolong debate by initiating a filibuster, which requires 60 votes to overcome. That ensures that the minority party has more power, and is one of the reasons why, at least in theory, the Senate is supposed to function as a more deliberative body.
CNN’s Chris Cillizza warns that if the Senate invokes the nuclear option on Supreme Court nominees, “the idea that the Senate is fundamentally different in its operations than the House” will be “gone, or at least badly damaged.” Instead, Cillizza argues the Senate “will be a place where majority makes might, and where the idea of reaching across the aisle is essentially a non-starter.”
But ending the filibuster for high court nominations won’t do away with all, or even the most significant, guardrails that foster deliberation and ensure that minority voices have a say in the Senate. As Vox notes: “If the nuclear option is used this week, the change would only apply to Supreme Court nominations. It will not be used to eliminate the filibuster for legislation. No one is seriously discussing that at this point.”
“Concerns that a nuclear option on the Gorsuch nomination will make the Senate become like the House, in which the majority rules, are really overblown,” said Gregory Koger, a political science professor at the University of Miami and author of Filibustering: A Political History of Obstruction in the House and Senate. “As long as the ability to filibuster legislation is maintained, that’s the important thing for the soul of the Senate as a place where ideas are thought out, moderated, and debated.”
Senate Republicans have a number of incentives to preserve the filibuster for debating policy and considering legislation. To start, Republicans will one day be in the minority again, and won’t want to eliminate a tactic that can be used by the minority party to stall, or encourage amendments to, legislation. Beyond that, senators who feel squeamish about any aspects of Trump’s legislative agenda likely won’t want the responsibility that would come with a newly-empowered majority in the Senate. If the filibuster didn’t exist for legislation, Republicans might be able to more easily advance legislation along party lines, but that would also make it more likely that they alone would shoulder the blame for any fallout.
The Supreme Court nomination may also seem like a higher stake scenario to McConnell, who took the unprecedented step of supporting a blockade on consideration of President Obama’s pick for the same seat, Merrick Garland, last year in the hopes of keeping it open for a Republican president to fill. The relative infrequency with which Supreme Court nominations come up for consideration in the Senate compared to legislation may make the majority party hesitate to implement the nuclear option beyond the high court nomination process.