The Senate is continuing its downhill spiral. President Trump’s cabinet nominees are facing unprecedented opposition, with Secretary of Education Betsy DeVos needing a vice presidential tie-breaker for confirmation. Democrats may filibuster Judge Neil Gorsuch’s nomination, possibly leading Republicans to end the filibuster for Supreme Court nominees and possibly legislation.
How did things get so bad? Democrats blame Republicans, who voted against almost all of President Obama’s agenda, including things they had previously promoted. Republicans respond with “Robert Bork,” whose Supreme Court nomination was sunk by Democrats. Then a Democrat whispers “Abe Fortas.”
There will never be agreement on “who started it,” making the more relevant discussion how to clean the slate and move forward. In past crises, a bipartisan “Gang” has been the Senate’s preferred way to reset relations. The “Gang of 14” broke a logjam of judicial appointments in 2005, preventing the very “nuclear option” that Senate Majority Leader Harry Reid used in 2013 to end the filibuster on other presidential nominees. A “Gang of 8” worked on comprehensive immigration reform, and “Gangs of 6” have worked on health care and financial reform.
What we need now is a “Gang of 19.”
Other than President Trump nominating Merrick Garland, I only see one way out of this situation: Senators agree that they will hold Justice Scalia’s seat open through the 2018 elections, after which the president’s next nominee(s) for the seat are guaranteed an up or down vote. Then it’s back to a 60-vote threshold, with everyone at least getting a hearing.
For Democrats, it’s a “lose bigger or tie” double down bet. If Republicans win in 2018, they get the Supreme Court Justice of their choice without a Senate rule change. If Democrats win the Senate, they have to take the heat of actual “No” votes on Trump’s nominees until he sends one a few can support. Not much of a win, but if McConnell is willing to end the filibuster for Gorsuch, Democrats have few other plays. They have to start by convincing three Republicans who cherish institutional norms to keep the filibuster, and they don’t really have anything else to offer.
Why 19? Three Republicans are enough keep the filibuster in place for now, but not to enact the plan in 2019. An enforceable agreement requires 60 votes regardless of the outcome of the 2018 election. With Vice President Pence breaking ties, Republicans can control the Senate with 50 votes, needing 10 Democrats to break a filibuster. If Democrats take over with 51 seats, they need nine Republicans to get to 60.
Is it fair? No. McConnell’s refusal to hold hearings on President Obama’s nominee was an unprecedented abuse of power. Will it happen? Probably not. Senate Republicans didn’t pay much of a price for blocking Garland, so why fear killing the filibuster? If that’s the case, get ready for full on majority rule with some crazy nominees and wild policy swings when one party controls Congress and the White House. So much for the Senate as President Washington’s “saucer that cools the tea.”
