Senator Ben Sasse has gotten a lot of cheers for his call to both Democrats and Republicans to adopt better Senate norms, but I don’t think it will work out very well. Democrats (and the center-left coalition they represent) are better served by today’s norms where major policy changes are made either through moments where one party has unified control of the elected branches and congressional supermajorities or else through the federal courts. That doesn’t mean that Democrats find our current situation ideal. They would prefer that congressional Republicans altogether disappeared, and that voters in the sticks stopped electing Republican governors and state legislators. It is just that our current situation better serves Democratic purposes than would a more accountable Congress . Democrats are not going to adopt a better set of norms if doing so reduces their power. That means Senate Republicans should, when they have the majority, adopt rules and norms that make for better government even though it will lead to emotional meltdowns from the Democrats and the media. That means getting rid of the filibuster in its present form.
Given the ideological polarization of the parties, the filibuster means that major structural changes can only happen when one party has at least sixty votes. That party can then protect that policy change so long as they can maintain a Senate caucus of at least forty-one. This means that the most important policy get changed when one party is at the height of its hubris and those changes are then locked in throughout the normal ebb and flow of politics. Rather then encouraging deliberation, the filibuster (in its current form and under current conditions) allows for major policy change during moments of hysterical activity and blocks change the rest of the time.
The filibuster also interacts badly with our current set of judicial norms. As Jan Crawford Greenburg pointed out, our parties have asymmetric cultures regarding Supreme Court nominations. Democrats are much more likely to oppose Republican Supreme Court nominations than the reverse. The filibuster makes it much more difficult for Republicans to confirm Supreme Court nominees and puts Republican presidents in the position of having to preemptively placate Democrats and wavering Republican senators in order to hope to get a nominee through the Senate. This also gives Republican presidents the excuse that they have to nominate trimmers in order to get a Senate confirmation. Meanwhile, Democrats can nominate virtually anyone and be assured of a Senate confirmation.
This shows up in how the Supreme Court justices vote in cases with high political salience. Democrat-nominated justices might as well be algorithms for predicting the policy preferences of the median delegate at the Democratic National Convention. There are not (and are not going to be) Democratic Supreme Court nominees that are idiosyncratic in the way of John Roberts was on Obamacare, or Anthony Kennedy on gay marriage, or Sandra Day O’Connor on half of everything. The current judicial norms ensure that every Democratic Supreme Court nominee will be another Stephen Breyer (any variation will be demographic, but not ideological), while the filibuster makes it less likely that a Republican nominee will be another Samuel Alito.
The result serves Democratic goals well enough. Their strategy of making law when they have supermajorities and protecting the changes the rest of the time is logical. But lawmaking that consists of decades of paralysis punctuated by months of hubris makes a mockery of conservative arguments that the filibuster encourages deliberation. Meanwhile, the liberals on the Supreme Court work to ensure that center-left legislative majorities are unconstrained by written constitutional restrictions (on free speech, on guns) while inventing new, unwritten constitutional restrictions to block conservatives who might win the occasional election.
This works for Democrats. They like it better than norms which encourages a more accountable Senate and (incidentally) make it easier to repeal Obamacare by simple majority, or make it easier for a Janice Rogers Brown to get confirmed for a seat on the Supreme Court. Ben Sasse can reference Robert Byrd all he wants, but Charles Schumer, Harry Reid, and Elizabeth Warren aren’t going to go for it. The Senate Republicans can’t control the Democrats. What the Senate Republicans can do is make rules that make sense during those times when the Republicans have the majority.
Many conservatives say that the filibuster forces deliberation. Fine. Replace it with a rule that could force a thirty day delay on the final form of a bill. Any amendment restarts the clock. During the thirty days, the minority can force a some number of days of debate on the bill and the minority is allowed half of the debating time. There is your time for deliberation and delay. After that, legislation passes by simple majority. A similar set of rules would be put in place for Supreme Court nominations.
That Obamacare should stay on the books (year after year) because there are only fifty-nine Senate votes for repeal is absurdist politics in the service of pseudo-constitutionalism. Keeping the next Edith Jones off the bench because she only has fifty-three Senate supporters and thereby nominating the next Anthony Kennedy involves damaging the real Constitution in order to protect a fantasy constitution in which a recent senatorial supermajority rule has attained the status of holy writ. The next time Republican have unified control of the elected branches, they should take account of how our current politics works (or rather doesn’t work) and get rid of the current filibuster rule in favor of something that makes sense.