Judd Gregg: The filibuster cometh

As most people who follow the Senate know, Democrats in that body announced they would try to stop any nominee that President Trump would select for the Supreme Court, even before that person’s identity was revealed.

Their logic for this position could best be described as political  “payback”.  

{mosads}The Republicans did not allow a vote on Merrick Garland, the nominee President Obama sent up during his last year as president. Now the Democrats apparently do not want to allow Trump to have a nominee confirmed throughout his entire term as president.

This stance really does take the concept of “payback” — which has never had a high status — to a new low.  

Of course, this action undermines the self-image of individual Democratic senators that they are thoughtful and independent contributors to the body politic. It also creates a significant test for the Senate itself.

When former Sen. Harry Reid (D-Nev.) was the Majority Leader, he executed something called the nuclear option. The purpose was to make it impossible for the minority — at the time, Republicans — to stop Obama’s nominees to the lower courts and administration positions by use of the filibuster and its 60-vote threshold. Instead, Reid changed the rules so that it only took 51 votes to confirm such nominees.

This action did allow Obama and the Democrats who then controlled the Senate to run their people and judges through on a fast track.  

But now the party roles are reversed and the change Reid instigated has handed Trump and the now-Republican Senate an immense gift of power. The current Senate Majority Leader, Mitch McConnell (R-Ky.) has not hesitated to use it.

Supreme Court nominees were never part of this rule change, however. 

Why was the Supreme Court confirmation process not subject to this power grab by the then-majority?   

Because there were a few voices — though not many — within the Democratic caucus that actually believed in the Senate.  They did not want it to become the House of Representatives.   

Rather, these few independent Democratic senators were committed to prolonging, at least to some degree, the historic role of the Senate. It was always meant to be the legislative body where consensus, not pure partisanship, reigned. 

Now the issue for the Republican majority is whether or not to extend the nuclear option to the Supreme Court.

If it is the intent of the Democratic senators to unite around the filibuster and deny a vote on a Supreme Court justice for what would be, under their stated dogma, at least four years, is it not appropriate for McConnell to follow Reid’s path and change the rules?

This is a dramatic constitutional and institutional decision for McConnell. It is essentially his call.

He is a brilliant tactician and political strategist. He is also a follower of another great Kentucky senator, Henry Clay. And he is a traditionalist when it comes to managing the Senate. In this instance, the two talents collide. 

Confirming a conservative jurist to the Supreme Court as soon as possible to fill the vacancy left by the death of Justice Antonin Scalia is politically important. Doing so would return a narrow center-right majority to the court, and pending cases could be decided under this structure.  

Moving to eliminate the filibuster on the Supreme Court nominee will essentially place the Senate closer to self-immolation. Its central purpose as the independent and somewhat bipartisan arbitrator in the American system of governance will be hollowed out.

It is a stark choice, maybe the most important and defining one McConnell will have to make in his exceptional career.

The following course of action might make sense:   

Do not institute the nuclear option. This retains the Senate’s status and confirms its uniqueness.

Force vote after vote on the nominee, Judge Neil Gorsuch, who is so exceptionally qualified.   

Twenty-five Democratic senators are up reelection in 2018. If they walk in lockstep in search of “payback” over Garland for an extended period of time, they will undermine their credibility and electability. 

At some point, some of them will have to yield or they may not have jobs in the Senate much longer.  

In addition, one can still believe that there are serious and independent Democratic senators who understand that the position of their leadership flies in the face of the Senate’s purpose.    

They hopefully will advise their leaders that the point has been made — but that in order to retain the integrity and tradition of the Senate, a vote should be allowed.

For McConnell, this does not get the speediest possible replacement of Scalia that many conservatives want. It does, however, create a tactical situation where the Republicans in the Senate have the high ground. This will reverberate positively in the 2018 elections. On the political side, it is a win.

It also is a win for the purpose and future role of the Senate.

Of course, if it does not work and the Democratic leadership is able to maintain the automaton status of its membership, McConnell has another option. 

Always, and at any time, he can pull the trigger and nuke ‘em.

Judd Gregg (R) is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee, and as ranking member of the Senate Appropriations Foreign Operations subcommittee.