Harry Reid invoked the nuclear option today, using a simple majority vote to change the Senate rule on filibusters with regard to federal judges at the district and court of appeals levels (but not the Supreme Court). Henceforth, such nominations cannot be filibustered and lower court judges can be confirmed by a simple majority vote. The repercussions of Reid’s action are likely to be far-reaching.
The filibuster has always been controversial–senators as far back as Henry Clay have threatened to abolish it by changing Senate rules–and the attitudes of politicians and pundits generally depend on whether their party is in the majority or the minority. When the Democrats were a minority in the Senate, Harry Reid denounced a threat to change the Senate’s filibuster rules as “un-American.” In our early days, we embarrassed the Minneapolis Star Tribune by pointing out that they had editorialized effusively both for and against the filibuster, depending on which party controlled the Senate. But the same could be said of many newspapers and other commentators.
The Democrats may argue that today’s rule change has only limited scope, but the genie is out of the bottle. Once filibuster rules start changing, why not change them some more? The key precedent that has been set is that the rule can be changed by a simple majority, so in the future, the filibuster will not be secure anywhere.
Reid’s timing is a little puzzling. In the short-to-medium term, the rule change is more likely to benefit Republicans than Democrats. My guess is that we will have a Republican Senate in 2015 and a Republican president in 2017; if so, the precedent the Democrats set today will come back to haunt them with a vengeance. To cite just one example, it will now be possible to pass Obamacare repeal in the Senate with 51 Republican votes.
Long-term, the filibuster is not a partisan issue. Both parties will be sometimes in the majority, and sometimes in the minority. Arguments for and against the filibuster strike me as inconclusive, so I would keep it. The filibuster has existed for a long time and is part of our political fabric. No one can fully foresee the consequences of doing away with it. The sound conservative approach, I think, is not to alter, without a compelling reason, an institution that has been part of our political life for going on 200 years.
That said, it wouldn’t surprise me if someone can find a post where I argued in favor of exercising the nuclear option when Republicans controlled the Senate.