The Corner

Law & the Courts

Why Is It So Difficult to Imagine the Day Your Side Is in the Minority?

Senate Majority Leader Mitch McConnell (Mike Theiler/Reuters)

On the op-ed page of the New York Times, Senate majority leader Mitch McConnell reminds Democrats that he warned them in November 2013 that they would regret repealing the filibuster for non-Supreme Court judicial nominees. Republicans won back control of the Senate in 2014, and then repealed the exception for Supreme Court nominees. Now, some Democrats want to eliminate the filibuster entirely if they win a majority in the Senate in 2020, and McConnell warns they will probably live to regret that decision as well.

Over at The Atlantic, Ron Brownstein writes, “If Democrats take back the Senate, preserving the filibuster amounts to providing the places most resistant of America’s changes a veto over the agenda of the Democratic coalition based in the places that are most welcoming to them. In a Senate controlled by Democrats, the filibuster would effectively empower what America has been over what it is becoming.”

Not only does no Senate majority last forever, since 1980, no party has kept control of the Senate for more than eight consecutive years. Republicans won their first Senate majority in a generation with Reagan’s victory, but Democrats won it back in the 1986 elections. Six years later, the GOP retook control in the 1994 Republican revolution, but shortly after George W. Bush’s election in 2000, Jim Jeffords switched parties and shifted control to the Democrats. The GOP won back a majority in 2002 and kept it until the sweeping Democratic wins in the midterms 2006. This launched a relatively long stretch of Democratic control until 2014, when the GOP won back the majority. During this time period, the Republicans have never had more than 55 seats; Democrats topped out at 58 Democrats and two Democrat-affiliated independents in 2009, until Scott Brown won the special election in Massachusetts in early 2010. The potential of the filibuster has always required them to find at least a handful of members of the opposition party to support big sweeping changes.

In other words, any rule changes your party makes as a majority will remain in place when you’re in the minority — and rest assured, someday, your party will be in the minority again. If you change the rules so that being in the minority just means voting “no” as 51 members of the opposing party pass their agenda, be prepared to be in the same position when you’re in the minority again.

McConnell notes that thirteen Democratic “ranking members on Senate committees have publicly stated that they oppose tampering with the legislative filibuster.” Jon Tester said getting rid of the filibuster for judges was the biggest mistake he ever made, and Amy Klobuchar expressed a desire to bring back the filibuster for judicial nominations. Dick Durbin lamented, “eliminating the filibuster on the Supreme Court at least, and maybe the other federal positions, has really created a much more political process.”

But Tester, Klobuchar, and Durbin have been around the Senate long enough to be in both the majority and the minority, and they can foresee how miserable life would be in the minority without the filibuster giving them a chance of blocking legislation they oppose. Apparently a great number of progressive activists have no such vision or foresight. They either can’t imagine or just don’t want to think about the day they’ll be back in the minority again – at a time when their preferred party is in the minority, with a not-so-easy three or four seats away from a majority (depending upon which party’s vice president is breaking the ties).

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