Fearful of the cost to the Senate’s institutional standing or just to “sane” strategic decision-making, commentators concerned about partisan filibusters and the invocation of the nuclear option are convinced that there is a better way for Senate Democrats. Let the Republicans have their vote, the argument goes, and the filibuster may survive for use in a later fight over a more controversial or unqualified nominee. Filibuster now but fail, when failure is assured, and when the nuclear option is invoked and the filibuster is gone, all defenses against future, extreme nominees will have collapsed. When it is over, the Senate will be the worse for it, a raw site of political conflict and power politics–more like the House, rather than the honorably deliberative body it is meant to be.
These objectives–the protection of the “unique” character of the Senate, and the construction of a smart Supreme Court nomination strategy–may in theory be consistent some of the time. But that is not necessarily case, and it is not clear why it is thought to be true here.
Maintaining a super-majority requirement or foregoing a partisan filibuster does not mean, by definition, that the Senate will be bolstered as “deliberative” body. Indeed as the Republicans proved in the Obama years, the filibuster rules can be put to use in bringing about something very different from deliberation, known by its shorthand, “obstruction.” If the claim is one about respect for “minority rights,” then the answer may be that with “rights come with responsibility,” etc. and the right to demand a 60 vote hurdle can be so routinely and irresponsibly exercised that there is every reason to question whether it should be preserved. After that usually comes the final set of arguments– the overused slippery slope argument, which is the easiest of all to make and fatally simplistic.
The further weakness of these claims about institutional damage, if “damage” is the right word, is that the harm is largely done. Historian Julian Zelizer writes that “since the 1960’s”…
[T]he Senate judicial confirmation process… has been devolving into a state of paralyzing partisanship. Partisan voting, partisan attacks, partisan character assassination, and partisan gridlock have all come to define the way the nation handles selecting its nominees to the highest court in the land.
So resort to partisan filibuster or to the nuclear option does not come as abrupt escalations but as the latest and largely predictable development “since the 1960’s” in a widening field of battle. The turn in this directions accelerated with the Senate’s refusal to hold even a hearing, much less a vote, on the Garland nomination. And the Garland blockade can be seen as another, if disturbingly aggressive, advance in the state of “paralyzing partisanship” Zelizer describes. Where in this history is to be found the institutional “uniqueness” that justifies the anguish over what may transpire in the Senate over the next few days? The rules and norms could not be expected to long survive this history and the change in institutional culture it reflects.
If strategy alone is considered, without fear of undermining rules and norms collapsing under other, inexorable pressures, then Senate Democrats are not miscalculating with a filibuster and the risk of the Republicans going “nuclear.” Their constituencies strongly oppose Judge Gorsuch’s ascent to the Court and they have, sensibly, little confidence that giving up on the filibuster this time around will affect future Republican majority behavior in the event that President Trump has another vacancy to fill. They appreciate that the Republicans will refrain from the nuclear option only if somehow doing so would serve their political interests–and given the grand prize that is a Supreme Court seat, they are fairly certain where those interests will lead them.