The confirmation proceedings of Judge Neil Gorsuch will soon conclude, and the outcome is virtually inevitable. Republicans will confirm Gorsuch’s nomination to the Supreme Court, thereby filling the vacancy that Justice Scalia left. Meanwhile, the Democrats will exit the year-long conflict with nothing. They failed to confirm President Obama’s appointee to the High Court, they failed to convince American voters to punish Republicans for their supposed recalcitrance, and they will soon fail to prevent the Gorsuch’s confirmation. But if Democratic leadership does not soon develop some circumspection, Senate Democrats are poised to exit the conflict with less than nothing.
Republicans have the votes to confirm Gorsuch, and the Democrats must be aware of that fact. While the Constitution places supermajority requirements on certain measures—as with ratifying treaties or proposing constitutional amendments—it does not do so for confirming Supreme Court Justices. Republicans only need fifty-one Senators (or fifty plus the Vice President), and Senate Majority Leader McConnell had those votes whipped and counted before the confirmation proceedings even began. The confirmation was a forgone conclusion the moment President Trump nominated a judge well within the judicial mainstream.
However, it remains unclear whether Republicans have the votes necessary to overcome a filibuster—a rule of Senate parliamentary procedure that would require three-fifths of the Senate’s members to end debate on a bill, nomination, or other proposal before the body as a whole could vote upon it (two-thirds for changes to Senate rules). The filibuster would require eight Democrats to agree to end debate and proceed to a vote (even if they ultimately voted against Gorsuch), or else the confirmation would stall.
But “would” is the operative word in that last paragraph. The filibuster was once a time-honored part of parliamentary procedure, derived from Roman Republic. Because Senate rules required all business to conclude by dusk, Roman Senators would deliberately make longwinded speeches until nightfall to prevent a vote—a strategy that Cato the Younger used to great renown. This strategy allows legislators to effectively “talk a bill to death,” killing it by simply refusing to stop the debate. The first recorded filibusters in the United States Senate occurred in the Antebellum Era, and the Senate eventually adopted cloture rules (those setting the threshold for ending debate) in the early twentieth century. Though used for ignominious purposes (blocking attempts to protect voting rights) and noble ones alike (thwarting President Wilson’s early attempts to increase American involvement in World War I), the principle remained the same: so long as a Senator was unwilling to yield the floor, the Senate would not force him to do so until a certain threshold had been met.
Changes to the Senate rules in 1975 ceased requiring Senators to actually hold the floor to filibuster. This allowed forty-one Senators to block a bill without engaging in what had been the filibuster’s sine qua non: talking. These changes prompted a drastic increase in the number of filibusters in recent decades, consequently diminishing the shared respect between both parties for the filibuster process.
During the second Bush Administration, the Republican Senate Majority Leader threatened to employ the “nuclear option” against threatened Democratic filibusters. This nuclear option had been theoretically discussed in previous years as a means of overriding a filibuster by majority vote. Under the nuclear option, the presiding chair of the Senate declares that one of the Senate rules is constitutionally questionable, and the body then decides the question by a majority vote. If fifty-one Senators agree that a rule is unconstitutional, the vote abolishes the rule—bypassing the current two-thirds requirement for changing the rules. In essence, if the Chair declares that the filibuster rule is unconstitutional and that declaration is affirmed by majority vote, the majority clears a path for itself to vote on any measure without minority obstruction.
The Republicans never got an opportunity to employ the nuclear option under the Bush Administration. Seven Democrats and seven Republicans banded together to oppose filibusters except in extreme circumstances, allowing for cloture. But the issue regained prominence in 2009 after the death of Senator Ted Kennedy of Massachusetts. The Democrats had exited the 2008 elections with 58 seats under their control, and they picked up additional seats through a special election and a defection in 2009—giving them a filibuster-proof Senate. Kennedy’s death and the subsequent election of Republican Scott Brown put President Obama’s flagship legislative initiative in jeopardy, placing Republicans in a position to filibuster the law. For the time being, Democrats avoided the nuclear option by using the Slaughter Rule—a process through which the House amended its rules to deem the Senate-passed bill “already passed” in the House while simultaneously passing an amending bill. The move arguably violated the Presentment Clauses of Article I by sending the bill directly to President Obama’s desk without actually being voted on in the House, but the tactic worked nevertheless. The first bill became law without returning to the Senate to be filibustered, and the House Democrats correctly calculated that the first bill’s flaws would dissuade Republicans from filibustering the second bill’s amendments.
Over the following years, the Republicans retook the House and made gains in the Senate. This stymied President Obama’s legislative agenda for the better part of his term, which he countered through aggressive uses of executive authority. In turn, Senate Republicans were increasingly likely to filibuster executive appointees, believing that doing so was the best means of thwarting executive attempts to bypass Congress.
The conflict came to a head in 2013, in which Democratic Senate Majority Leader Harry Reid of Nevada executed the nuclear option for lower court judicial appointees. Reid declared the filibuster unconstitutional for such appointees, and the Democrats voted to affirm his declaration.
Of course, the move was and remains a short-sighted one. Having made the first move, the Democrats left Republicans with little qualms about reciprocating. Whatever power the soon-to-be-retired Reid thought he was taking from Republicans in 2013, he was in fact taking from his own party, which entered minority status in 2014. And the Republicans seem poised to cash-in on Reid’s lack of circumspection should the Democrats filibuster Gorsuch’s confirmation.
From a political perspective, any attempt to filibuster Gorsuch appears to be one of high costs and low yields for the Democrats. Filling Scalia’s vacancy with Gorsuch is relatively inconsequential as far as the jurisprudential “balance” of the Supreme Court is concerned. One originalist is merely replacing another, and the Court will essentially be the same as it was when it upheld Obamacare and legalized gay marriage. Whatever the Democrats feel they have “lost” in Merrick Garland’s nomination, in fact they never had.
This is a low-risk vacancy for Democrats, especially in light of other potential vacancies that may arise in the near future within Trump’s term. With Scalia’s death, only three justices remain who are seventy-years-old or older—Justice Breyer (seventy-eight), Justice Kennedy (eighty), and Justice Ginsburg (eighty-four), none of whom could easily be called “originalists.” It would be remarkably myopic for the Democrats to expend excessive amounts of political capital where it avails them little while simultaneously prompting the destruction of the protection that the filibuster provides during a more consequential vacancy.
“But,” some may say, “if the Republicans will abolish the filibuster for Gorsuch, would they not simply do the same for a later vacancy when they have more to gain?” Not necessarily. People tend to weigh losses more heavily than equivalent gains. For example, most people would consider not losing five dollars to be more important than serendipitously finding five dollars. Putting it in terms of the present confirmation proceedings, it may be more important to Republicans not to “lose” Scalia’s seat to a non-originalist than to “win” Ginsburg’s seat by filling it with an originalist. (The inverse should be true for Democrats as well, but it remains unclear whether they fully comprehend what they stand to “win” or “lose” in this situation.) So while Republicans may be willing to abolish the filibuster to “protect” Scalia’s seat, they may be less willing to do so for replacing a Democratic appointee or the moderate Kennedy. Besides, the Republicans may perceive that abolishing the filibuster carries some political costs—noting that Democrats lost the Senate just one year after Harry Reid used the nuclear option. These costs may be tolerable to mitigate the “loss” of Scalia, but may otherwise seem too large for other vacancies.
Even if Republicans weigh the cost-benefit analysis differently for some later Supreme Court, prompting them to do abolish the filibuster now would largely eradicate any chance that the two parties will amend and preserve the filibuster. And both parties should want to preserve the filibuster—not just because it is an effective way to protect against loss, but also because of its speech-protecting function. The filibuster and the corresponding cloture rules ensure that both sides have an opportunity to generate support or opposition without being shut down by a simple majority vote before any debate occurs. Once the Republicans successfully confirm Gorsuch and thus remove the present risk of “loss,” McConnell (who deeply resents Reid’s use of the nuclear option) may be willing to examine avenues to reform the filibuster. To the extent these avenues are amenable to both sides, Republicans and Democrats alike may become averse to its abolition.
But there are those who oppose reform on the grounds that the filibuster is unconstitutional—that no legislature may bind its successor by anything but a majority. And, as they note, the current cloture rules require a three-fifths vote, and amending the Senate rules requires two-thirds.
Such arguments carry no weight for one simple reason: the Constitution expressly grants both chambers the power to set their own rules of procedure. When the Constitution says that “[e]ach House may determine the Rules of its Proceedings,” it means exactly that. Except for the few instances in which the Constitution demands a specific vote (such as with amendments or treaties) or procedure (such as with impeachment or quorum requirements), both chambers are at total liberty to determine their own procedures. Indeed, they are not even bound by a majority vote except as a practical matter (no majority would vote for a rule, for example, that allows the passage of a bill with which they disagree). If the legislature decides that a supermajority is needed to change the rules of the Senate, then so be it—which is, by the way, a perfectly sensible notion, lest the chamber itself degenerate into chaos as rules change with majoritarian whims.
Besides, the courts have no jurisdiction to challenge these rules as unconstitutional, no more than they have jurisdiction to determine whether the President used his veto unconstitutionally. Those powers are plenary, and so they are not checked by the other branches. Instead, they are checked only by the voters, who remain free to remove legislators that adopt poor procedures or presidents who use their veto improperly. The only role that the courts can play is to determine whether the rules that Congress adopted were in fact followed. (This raises an additional question as to whether a Court may say that the nuclear option itself is a violation of the established procedure of the Senate, since it declares as unconstitutional what cannot be. While courts have entertained certain forms of “legislator standing,” such a case would still require a radical reevaluation of current standing law that is unlikely to occur while this issue remains salient.)
But it is precisely because courts are largely unable to check these rules that they must be placed beyond mere majority control. If parliamentary rules are to govern the conduct of the entire chamber, a simple majority should not be free to change the rules whenever that majority finds it politically expedient to do so—as is the case with the nuclear option. Any attempts at reforming the filibuster must also address the current procedure for declaring rules unconstitutional—a rather absurd rule in and of itself, given that the rules were adopted through more than a simple majority, meaning a supermajority believed them to be perfectly constitutional at the time of adoption. To the extent that the Senate wishes to retain a procedure for declaring Senate rules unconstitutional (which is largely superfluous except in egregious circumstances, which are patently unlikely), it must put that threshold beyond a simple majority. In fact, the Senate must put that threshold beyond the threshold for cloture. Such is the only way to ensure that the filibuster remains entrenched, and in a manner that courts could protect through legislator standing (should a subsequent majority decide to abolish the filibuster without having the requisite numbers).
And yet, other concerns must also be considered. While filibusters generally serve certain legitimate interests in a republican system of government—protecting minorities from majoritarian oppression, ensuring that legislators are free to express their judgment on matters pending before them, promoting widespread consensus before action is taken—the filibuster’s current form may do more harm than good. By no longer requiring Senators to actually hold the floor for debate, the filibuster enables minorities to block otherwise passable legislation while minimizing the costs for doing so—even if the cost is as simple as taking the floor for public scrutiny before television cameras. Far from promoting minority speech, the current filibuster has instead incentivized not speaking.
All these issues can be reformed. The requirement that Senators hold the floor can be reintroduced, the nuclear option can be neutered, and other improvements can be made. But if the Democrats decide to filibuster Gorsuch, they severely risk abolishing the filibuster for all time.
This is particularly distressing in the case of executive nominations. If ever there were an era in which the minority party needed the ability to obstruct overbearing executive authority, it would be the present one—the era of the imperial presidency. If filibuster protections are removed, Americans will be left to rely on nothing but the current President’s own party—or else a divided government—to prevent executive overreach.
Such concerns do not paint a rosy picture if the filibuster is abolished, for either Republicans or Democrats. And presently, no one should trust Republicans not to abolish the filibuster—especially when they have so much to lose, and when Gorsuch has proven himself to be an inimitably reasonable jurisprude. Instead, Democrats should concede the present battle and look forward to the next one. Ultimately, they may not do so. And ultimately, the Republicans may still look for ways to reestablish and reform the filibuster after using the nuclear option. Such things remain uncertain. But whatever short-term gains the parties believe they will make in abolishing the filibuster, they will almost assuredly experience regret in the very first moment that they wish they still had it—hopefully, something that both Republicans and Democrats will soon realize.