The Drama in the Senate Over the Filibuster Is Mostly Fake

In an era of rising partisanship, it was going to get harder to defend the rights of the legislative minority.

Schumer sticks to the script.

Photographer: Aaron P. Bernstein/Bloomberg

How important is it, really, the pending change to Senate rules to end the possibility of filibustering nominations to the Supreme Court?

It will result in Judge Neil Gorsuch’s joining the court, which is important. But the rules change itself -- sometimes called "the nuclear option" -- is being described as an epochal event in the history of the Senate.

The reality falls far short of that alarming description. Senate Republicans said, accurately, that there has never been a successful partisan filibuster of a Supreme Court nominee. They made that observation to portray the Democrats’ filibuster of Gorsuch as an extreme abuse, and therefore to justify their own change.

But the conclusion to which this observation should lead is that much of this week’s drama has been fake. Filibusters of Supreme Court nominations have been attempted extremely rarely and have not played a significant role in shaping the court. The Senate is changing the rules so that they never will play one.

No majority party in the modern era -- an era in which the Supreme Court has assumed an outsized power to make policy and the political branches are therefore obsessed with it -- was going to tolerate letting a minority block its nominees. Both parties see this point, but only through the lens of partisan paranoia.

When Democrats debated whether to filibuster Gorsuch, some of them said that they should save the filibuster for a more controversial future nominee. But the dominant sentiment among them was that Republicans would end the filibuster as soon as it became an obstacle to them.

Republicans had their own debate about whether to end the filibuster, with some of them saying that they might want to use it against an objectionably liberal nominee in the future. The dominant sentiment among them was that, you guessed it, the Democrats would change the rules if that ever happened.

Both sides are right. In filibustering Gorsuch, the Democrats were making a futile gesture. But it was also one that cost them little. They lost a power they could probably never use. In changing the rules, Republicans aren’t giving up any future power they would be able to use, either.

The rules change does, however, raise the odds of something that would make a real difference: the end of the legislative filibuster. Traditionally the Senate has distinguished in various ways between the treatment of legislation and nominations. It even maintains separate “calendars” for each. Filibusters have been used longer, more frequently and more consequentially against legislation than against Supreme Court nominees.

Supporters of the legislative filibuster fear, reasonably, that these differences won’t matter: The idea that simple majorities should rule and that obstruction by minorities is intolerable will take over the Senate. We have already moved down that particular slippery slope. In 2013, Senate Democrats, then in the majority, ended the filibuster for nominations to any federal court but the Supreme Court. They established the precedent that a simple majority could change the rules.

But that principle was always valid even if it was unspoken. The Senate minority has rights because the Senate majority grants them, and the Senate majority grants them because its members can picture being in the minority themselves someday. (The fact that several Democrats now say they were wrong to end the lower-court filibusters because Republicans can follow their example is a testament to the fact that the ability to see around corners can’t always be counted on.)

In an era of rising partisanship, it was going to get harder to defend those rights. Changing the rules on Supreme Court nominations will make only a marginal difference.

Neither mounting the filibuster nor ending it was likely to matter much to voters, either. In the last few weeks, only four Senate Democrats announced that they would refrain from joining the filibuster against Gorsuch. Three of those four said that they were also going to vote for his confirmation. The Democrats didn't seem to think that there was any political gain to be had in saying that they were fair-minded enough to allow the nomination to proceed to a final vote even if they would then vote no.

On the Republican side, nobody spoke up for the idea that Gorsuch should be confirmed but that it should also be possible for the minority to filibuster him.

From this behavior, we can surmise that almost all politicians considering the issue believed voters are going to care more about whether they support or oppose Gorsuch than about their stand on procedural issues related to the nomination.

Michael Barone, the great political journalist, once coined the rule that “all process arguments are insincere.” Republicans argued against judicial filibusters during the George W. Bush years and for them in the Barack Obama years.

Why are these arguments so lightly picked up and then abandoned? Because not many people really care about them.

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