As partisan warfare escalates in the Senate, members of that distinguished body seem to be in a race to see who can best make Saul Goodman — of Breaking Bad and Better Call Saul fame — seem a comparative model of honesty, forthrightness, and sincerity. Democrats who implied that they would nuke the filibuster to confirm the Supreme Court nominee of a hypothetical President Clinton are now proclaiming the sacrosanctity of the (completely new and obviously completely opportunistic) “60-vote threshold” for Neil Gorsuch. Senators who a few weeks ago were arguing for an up-or-down vote on Gorsuch are now attempting to deny him an up-or-down vote. The wild swings of opinion not only give the observer a case of cognitive whiplash — they are also highly corrosive to the norms of good faith necessary for republican life.
A model of partisan disingenuousness, the fight over the Gorsuch filibuster risks leading to a stand-off where we are left with a choice between the terrible and the merely bad. As Jason Willick has not unpersuasively argued, the Schumer precedent would, if carried to its logical conclusion, be a Tomahawk missile aimed at the Supreme Court: The proposition that the president’s party needs 60 votes in the Senate to confirm his Supreme Court nominees would leave the Court essentially unfilled. The only post-1968 nominee who would have been confirmed under that precedent is Sonia Sotomayor. Plenty of Supreme Court justices have been confirmed with more than 60 votes, but there has not been before such a concerted effort to organize a partisan filibuster against a nominee who enjoyed majority support. No Supreme Court nominee has ever been defeated by a partisan filibuster, and the effort to sustain partisan filibusters against nominees sets a very troubling precedent. (By contrast, whatever one thinks about the Republican denial of a hearing for Merrick Garland, that set a much narrower precedent: No Supreme Court nominations will be approved by a Senate controlled by the opposite party during a presidential-election year. Unlike the Schumer precedent, the Garland one would still allow the court to be filled.)
If the choice is between the nuclear option and the Schumer precedent, then, the decision seems relatively straightforward. The nuclear option would damage the Senate as an institution (and conservatives should not kid themselves — it would damage the Senate). But the Schumer precedent would destroy the Supreme Court. Wounding one branch of government to save another seems an understandable trade.
However, in this troubled time we might be better off thinking not about how to damage institutions the least but instead about how to preserve and sustain them. The filibuster plays a crucial role in making the Senate an institution of consensus. The filibuster empowers individual senators and encourages bipartisan comity. This is especially true for the legislative filibuster. Nuking the filibuster for Supreme Court nominees (which is a relatively novel application of the filibuster) is logically distinct from the fate of the legislative filibuster. However, politics often defies logic, and another exercise of Harry Reid’s nuclear option only habituates the Senate more to the process of gutting the filibuster in all its forms.
It thus behooves Republicans and all who want to maintain the norms of Senate deliberation to try to find some way between the nuclear option and the Schumer precedent. Sean Davis of The Federalist and James I. Wallner and Ed Corrigan at the Heritage Foundation have offered one intriguing way of working through a Gorsuch filibuster: Use Rule XIX of the Senate as a way of ending the filibuster. Under Rule XIX, each senator is allowed to give no more than two speeches on a given topic during each legislative day, which is distinct from the calendar day. Extending the legislative day over multiple calendar days, the Republican majority would let each Democrat who wanted to filibuster Judge Gorsuch speak for as long as he or she wanted to but would hold each senator to only two speeches on Gorsuch. Once all filibustering Democrats had given their two speeches, a vote on Gorsuch would commence; there would be no need for a cloture vote on the nomination because, under Rule XIX, no more filibustering senators could speak.
Applying Rule XIX could solve some problems for both Republicans and Democrats. It would allow Republicans to confirm Neil Gorsuch without going down the road of partisan nihilism charted by Harry Reid. More than a few Senate Democrats are aware that filibustering Gorsuch is a dangerous strategy (see Claire McCaskill’s comments on the subject). But they fear the risks of a primary challenge in voting for cloture on Gorsuch. Rule XIX would allow Gorsuch to be confirmed without Democrats’ having to walk the plank on a vote for him. Applying Rule XIX to the Gorsuch vote would also shift the vote from binaries (yes/no on cloture) to a spectrum of action (such as how long to speak for). This spectrum would give rise to new political calculations. Does a senator like Montana’s Jon Tester, whose state Trump won decisively in 2016, want to give a ten-hour stem-winder against Gorsuch, or deliver more abbreviated remarks? How much does he want to make sustained, on-the-record attacks on Gorsuch, and thereby risk alienating his constituents back home — many of whom voted for Donald Trump so that he could make nominations like Gorsuch?
Applying Rule XIX would exact a price from the majority (they couldn’t confirm Gorsuch instantly), but it would also cost the minority, which would have to mount a talking filibuster against Gorsuch knowing that, eventually, that filibuster would be ended by Rule XIX. The nation would see filibusterers endlessly fulminating against President Trump and Neil Gorsuch — and not working to address the challenges the nation faces. Circumventing the nuclear option could be a first step toward rebuilding trust and comity in the Senate. It might — that’s might — suggest that Harry Reid’s tenure as majority leader was a partisan anomaly rather than the new normal.
For ideologues certain of their righteousness, and tribalists secure in their enmities, deliberation is a passé virtue. But those of us interested in maintaining a free republic might realize that deliberation is a major ally of republican life. The Senate, for all its flaws, has often been an institution of deliberation. Henry Clay, Abraham Lincoln’s hero and perhaps the greatest senator from Mitch McConnell’s home state of Kentucky, spent much of his life using the tradition of deliberation to preserve the republic during fractious times. Our own days grow more contentious, which makes it even more important to try to preserve the institutions of deliberation and compromise. Before pulling the trigger on the nuclear option, Republicans should weigh the costs of that measure and try to find a way to preserve the integrity of the Supreme Court and the conciliatory elements of Senate procedure.
— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm.