U.S. Senate

This Filibuster Can Be Saved

If the Democrats become the majority, they should protect the rights of the minority.

Teach them how to say goodbye.

Photographer: Nicholas Kamm/AFP/Getty Images

Harry Reid has suggested that if Democrats gain a majority in the Senate, they would be ready to eliminate filibusters against Supreme Court nominations -- “if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice.”

I hope that incoming Democratic leader Chuck Schumer would only do this as a last resort. In fact, if he becomes majority leader, he should try to cut a deal to restore the minority party’s rights, which are atrophying in the Senate. 

Reid, who is retiring, was majority leader in 2013 when Democrats imposed rule changes to end filibusters against executive-branch and most judicial nominations. Supreme Court nominations can still be stopped by a minority. That’s because a 60-vote supermajority is needed to defeat a filibuster. But simple majorities are enough to confirm other presidential nominees. 

Reid and the Democrats took that step only after Republicans had abused the process. It’s true that both parties have made more use of the filibuster over the last 25 years. The Democrats were the first, in the George W. Bush administration, to employ it to block circuit-court nominees. But Republicans were responsible for the two biggest increases in filibusters -- in 1993 and 2009, the first years of the Bill Clinton and Barack Obama administrations, respectively.

For certain Obama nominees to executive-branch and judicial positions, at least 41 Republicans formed a blockade, agreeing to oppose not just those choices they found objectionable (as Democrats had done with George W. Bush’s), but for any nominee at all.  In other words, instead of using the filibuster as a tool to empower the minority and allow it to bargain for a better deal, they tried to use it to run the Senate. 

Given the choice between strict majority rule or minority rule, the Democrats and Harry Reid chose the former and eliminated filibusters. If Hillary Clinton becomes president and Republicans become the minority party in the Senate, it’s likely -- but not certain -- that Republicans will try to continue to blockade Supreme Court nominees, as they have done this year. If so, Democrats will surely change the rules.

There is a compromise, however, that would protect both parties and individual senators, while helping the Senate as an institution.

The key is to get Republicans to agree to use the filibuster only for those judicial nominees they believe are the worst. They also would have to agree to expedite the process. In return, Democrats would restore the filibuster for judicial nominations, and leave it in place for the Supreme Court. So the Senate would once again need a supermajority to confirm nominations -- but only for selected cases. 1

Republicans would benefit because under the current rules, they may have (depending on the exact election results) almost no chance to stop any of Clinton’s judicial selections. So even giving them a slim chance of defeating those they consider particularly objectionable would be to their advantage.

Yes, a handful of Clinton judicial nominations might be defeated. But the more expedited procedures would make up for those defeats. And if the agreement held, Democrats would retain the ability to block nominees from a future Republican president and a future Republican-majority Senate they consider out of the mainstream. 2

A compromise on judicial nominations would also move the Senate away from simply abolishing the filibuster for everything. That’s good for the Senate as a whole, because it encourages senators to be serious legislators and take their other responsibilities on behalf of their constituents and their interests seriously, rather than just being votes for the party agenda. American democracy overall is strengthened when the ability of Congress to act as more than either a partisan rubber stamp or a partisan veto is strengthened.

Is there any sign that either party would try to reach a deal like that? Not now. But if Trump loses, perhaps Republicans might be willing to rethink their reflexive opposition to a Democratic president and, if so, Democrats should be willing to make the trade.

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

  1. How big a supermajority? Perhaps one equal to the size of the majority party in the Senate. Perhaps a bit bigger, or smaller.

  2. Should Democrats even consider trusting Republicans enough to propose that deal? Yes, because the majority party would retain the ability to impose rule changes, just as happened in 2013.

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

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net

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