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You would think Senate Republicans would be focused on how to wield their soon-to-be acquired majority status, not plotting how to cede power back to the Democrats. However, a sizable minority of Senate staffers is proposing we do just that.
It all started — as most rotten things do — with Harry Reid. One year ago, he took “the nuclear option,” abolishing years of Senate rules by lowering the vote threshold for ending filibusters on nominees to any post but the Supreme Court from the traditional 60 to a mere 51.
Citing Republican “intransigence” — read: using the same tactics the Democrats employed in 2003 against nominees such as Miguel Estrada — Reid and a coterie of Democrats who had never served in the minority “broke the rules to change the rules.” That is, they did not follow the Senate rule that requires 67 votes to change the rules; they did so with a bare majority.
Now, with Republicans slated to take control of the Senate, the first order of business is how to treat future nominees under the new Senate leadership. Should Sen. McConnell now respect the old precedent of 60 votes, or should he continue treating the 51 vote threshold as the operating rule?
Why is this so important?
First, it’s a clue to how McConnell will operate as majority leader. Right now, we don’t know if McConnell will run the Senate like Reid, changing the rules whenever it suits him, be the ultimate “institutionalist” and revert to the old system, or will opt for the same rules Reid worked under without changing others.
Most outside observers acknowledge the Democrats have acted in bad faith and have done done nothing to earn Republican magnanimity now that they are out of power. However, there are no timeless axioms — per Hamilton in Federalist 31 — that determine Senate rules. It is far more helpful to think of Senate rules as battle tactics rather than battlefield ethics: they are not not to be changed lightly, but are not inflexible, either. Should McConnell opt for a third way, look for him to de-emphasize process and instead talk about the substance of what he is trying to preserve in this specific context. He’ll try to prevent any slippery slopes from forming, in other words.
Second, it will tell us how the Senate will treat its other duties. The institutionalists have been saying that — once the rules are compromised on judicial nominees — SCOTUS and legislative filibusters will follow suit. Words like “unconstitutional” and “originalist” are thrown around by the institutionalists as rhetorical devices meant to make them out to being principled conservatives.
In fact, this is a question of procedural vs. substantive claims of injustice. The institutionalists favor preserving a procedural difference between the House and Senate that upholds the latter’s non-majoritarian character. The pragmatists respond that that character stems from the Senate’s central tradition of comity, which is best addressed by taking a more flexible, less-sacrosanct attitude toward tradition. No set of rules will be respected unless they are agreed upon in a sober, bipartisan fashion, rather than birthed by crisis, as has been done under years of Reid’s corrosive leadership.
The answer is not blind adherence to rules detached from any sort of moral bearing. Tradition and circumstance should shape Senate rules and my advice to McConnell is to tread lightly while changing any rules, judging changes both on their institutional merits and by how they would benefit the GOP majority in the short and long runs too.
Third, this is a matter of today but also tomorrow. McConnell has a choice: on the one hand, he could put the vote threshold back up to 60 votes, thereby making it harder to appoint conservative judges in two years when the White House is (hopefully) back in GOP hands; on the other hand, he could rely on alternative institutional checks such as the Judiciary Committee’s power to keep bad nominees under wraps.
It’s also worth noting that any unilateral move by Republican leadership will mean nothing if Democrats take the Senate and retain the White House in two years. At the same time, it will also mean a lot, due to the infinitesimally small chance the GOP has at least 60 votes after 2016. Getting our judges in when the White House flips is a top priority for undoing the wreckage of the Obama years, and we need to be sure not to do anything that impedes that.
I fall squarely on the side of the pragmatists who want this issue to be resolved quickly and without acrimony. A civil war on the GOP side about this would be foolish considering the momentum we have after the election. Reid didn’t realize he gave us a gift to confirm our judges while not needing to compromise our own principles of abhorring changes to the Senate rules for prudential reasons.
That said, we are likely to end up with a bare majority in the Senate in 2016 and the federal judiciary is a jump ball right now. The parties have become better than ever at sorting out the judges they want to nominate and being able to appoint judges is one of a president’s most lasting impacts. Reverting to the old rules now that we’re in power would mean giving up our ability to match the awful judges Reid has put up in recent months with worthy conservatives. If we were to play under one system with two rules, the Democrats would get to appoint Ginsburgs to the lower courts while we would have to content ourselves with unknowns and (worse yet) David Souters.
The stakes are high, but we don’t have to mess this one up. We should take the gift Reid gave us and move on to the business the American people elected Republicans to do.