It is filibuster time again. And you know what that means: time to be disappointed! You may remember last year around this time, we were talking about complete filibuster reform. And then only a month ago, we were talking judicial and executive nominee filibuster reform. Well, I knew something was wrong last night, when Sherrod Brown said he was for filibuster reform and immediately started talking about executive nominees. And sure enough, Politico has reported, Sen. Harry Reid Ready to Go Nuclear on Executive Branch Nominations. This is not good as I will explain shortly.
The argument is that since judicial nominees are appointed for life, we should allow the minority party to hold up pretty much every nomination for as long as they like—forever, if they want. It’s democracy, stupid! But there are apologists for the whole practice. Jonathan Bernstein, who is a brilliant commentator and probably more knowledgeable about the filibuster than anyone, is happy, The Best News in Senate Reform. And indeed, it is true that the Republicans are being a tad more reasonable when it comes to nominations. But I don’t think any reasonable person could conclude that this is anything but an effort to stop filibuster reform. As soon as the talk is over, they will go back to their normal behavior.
Splitting the difference on this one is a mistake. If the Republicans can no longer filibuster Richard Cordray just because they don’t like the Consumer Financial Protection Bureau, they will redouble their efforts on judicial nominations. You can bet that if Obama gets his new EPA director, the Republicans will want to stop him from getting his judges on the Court of Appeals for the District of Columbia Circuit. If the Democrats don’t go all the way on filibuster reform, the Republicans will assume (rightly) that they don’t have the votes to do more and it will be open season on judicial filibusters.
You may be wondering why I’m not calling for full filibuster reform—including legislation. Well, I am. But we certainly aren’t going to get that. What’s more, leaving that out doesn’t hurt us. When it comes to legislation, it is the House that stops everything, not the Senate filibuster. See, for example, immigration reform. If the Democrats held the House, it would be a different matter. Doing only executive and judicial nominations could stop legislation from getting passed. That just isn’t an issue now or for at least three years. (I’d be glad to be proven wrong.)
All discussions of filibuster reform come back to the same thing, however. The Republicans will abolish the filibuster as soon as they are in the majority with a Republican in the White House. From a practical standpoint, they already did this on judicial nominations. It was just that rather than allow the idea of the filibuster, the Gang of 14 allowed it to stand while in practice allowing pretty much every Bush nominee through. And then when the Democrats were in the majority, the coalition fell apart and the 7 Republicans who were part of the “gang” began the process of filibustering everything in sight.
When there is a Senate Republican majority with President Rubio, the Republicans will abolish the filibuster. At that time, the Democrats will cry foul. They will say that they made only minor changes to the filibuster. They will say that they were only responding to bad behavior of the Republicans. They will say that they could have gotten rid of the whole damned thing while it was to their advantage. And I will be there to say, “Yes. And you should have!”
Update (10 July 2013 11:09 am)
At least Ed Kilgore is on my side!