Schumer’s Not-So-Bad Idea to Bring Back the Filibuster

(Bloomberg Opinion) -- Senate Minority Leader Chuck Schumer is floating the idea that the Democrats could bring back the filibuster for Supreme Court nominations if the party regains a majority in the chamber. At the moment, it takes only a simple majority to cut off debate and bring a nomination to a vote, but Schumer is talking about going back to the requirement of 60 votes.

Matt Yglesias likely spoke for many liberals with his initial reaction, saying: “Is he insane?” 

I don’t think so. He’s just doing what congressional leaders do: Managing an unruly caucus of politicians with wildly different preferences and incentives.

Suppose that Democrats win a majority of 51 or 52 Senate seats in the 116th Congress, which starts in January. And suppose there’s a Supreme Court vacancy in 2019. Or suppose President Donald Trump is re-elected while Democrats maintain a slim majority in 2020, and a vacancy shows up in 2021. 

Liberals, and highly partisan Democrats, are going to want revenge for the Supreme Court seat they view as stolen when Republicans refused to consider any Barack Obama nominee — and for plenty of other blocked Obama judicial nominations. They would want Democrats to blockade that hypothetical open seat for two years, or even longer if it shows up in a Trump second term. But Schumer knows he’ll have a problem. His majority would include West Virginia’s Joe Manchin, Indiana’s Joe Donnelly, North Dakota’s Heidi Heitkamp and perhaps Phil Bredeson from Tennessee, along with a few other Democrats from marginally Republican states.It’s very unlikely that all 51 Democratic senators would be willing to support Schumer if he did what Majority Leader Mitch McConnell and the Republicans did in 2016 — just refuse to consider any possible Trump nominee. If Schumer goes for the blockade, he risks breaking apart his party. It’s even possible that Manchin, in particular, would react by crossing over the aisle and either switching parties or becoming an independent who caucuses with the Republicans. 

However, if Schumer restores a 60-vote cloture on the first day of the new Congress, things get a lot easier for Democrats. In that case, if there’s a vacancy, the party’s lawmakers could go through the motions of giving the nominee a fair chance, all the while crowing about how fair they were compared to Republicans in 2016. Then 41 Democrats could defeat the nominee by filibuster while a handful of moderates would be free to vote as they wanted. 

In other words, reinstating a supermajority during a period of divided government wouldn’t be insane; it would be ruthless partisanship.

But it’s not clear what the outcome of a Supreme Court fight would be, given a Republican president and a slim Democratic majority. It’s quite possible both sides could compromise, with Trump nominating an older, less extreme conservative, and Democrats allowing a coalition of Republicans and moderate Democrats to confirm him or her. (Democrats famously chose not to filibuster against Clarence Thomas, who had 51 votes but was nowhere close to 60). It’s also possible 41 or more Democrats would blockade the seat without saying they were by objecting to each nominee as too extreme no matter what. Or, Trump might refuse to send up a compromise candidate, in which case it wouldn’t be hard for Democrats to defeat nominees similar to Brett Kavanaugh or Sam Alito. In any case, Democrats would be in a better position if confirmation required 60, not a simple majority.

And if Democrats have unified government after 2020 they can always remove the filibuster, presumably after Republicans try to use it against the new president’s first Supreme Court nominee. 

But whatever Schumer does as majority leader won’t be binding on Republicans when they regain control. In some ways, that frees him to do whatever is in his party’s short-term interest. 

Of course, restoring the old rule of 60 permanently would force more compromise choices, with extreme liberal or conservative nominees only possible when one party wins huge consecutive landslides, as Democrats did in 2006 and 2008 (it requires consecutive landslides because only a third of the Senate is on the ballot in any election). But we know Republicans will never accept any defeat by filibuster (they changed the rules last year to prevent it, and they would surely do it again if it ever came to that), and I doubt Democrats would at this point either. Republicans rejected a compromise candidate in 2016, risking winding up with a much worse (from their point of view) nominee had they lost that election. They would no doubt take that gamble again, and I suspect Democrats wouldn’t accept a compromise at this point either.

In the long run, everyone loses from this kind of politics. We may need a constitutional amendment to defuse the situation to some extent. The best proposal out there now is to replace lifetime appointments to the Supreme Court with staggered 18-year terms, with one seat becoming vacant every two years. That would at least make each seat somewhat less important. Still, it’s worth remembering that some Republicans were threatening to leave the 2016 vacancy open for four more years if they retained a Senate majority and Hillary Clinton won the White House. Would shorter terms really end that kind of constitutional hardball? And if not, is there any other way to force compromise? Presumably, an 18-year constitutional amendment would also set the size of the court at nine, thereby eliminating any retaliatory court-packing scheme.Perhaps it could also enable some sort of recess appointment if the Senate refuses to act? Because lowering the stakes a bit isn’t likely to end the judicial wars; it’s going to take a mechanism that gives incentives for compromise during times of divided government.

The Constitution and the U.S. political system are supposed to have plenty of incentives for deliberation, bargaining, and compromise. It still works sometimes in other areas; the appropriations process this year is a good example. But until we devise a new system for nominations, we’re just going to have more ruthless partisanship from McConnell, Schumer and everybody else. 

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

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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