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Don‘t Expect the Senate to Back Away From the Brink

Ending all filibusters seems inevitable, Gorsuch's confirmation the likely ‘nuclear’ spark

It may not be a question of if Senate Majority Leader Mitch McConnell will use the “nuclear option” to break a legislative deadlock, but when, Hawkings writes. (Bill Clark/CQ Roll Call file photo)
It may not be a question of if Senate Majority Leader Mitch McConnell will use the “nuclear option” to break a legislative deadlock, but when, Hawkings writes. (Bill Clark/CQ Roll Call file photo)

Nuclear winter is coming. 

Perhaps it won’t arrive during this Supreme Court showdown. But then the odds will approach metaphysical certainty with the next vacancy on the court, unless deadlock on a premier piece of legislation happens first.

The Senate no longer seems capable of preventing itself from completely laying waste to traditions of deliberation, customs of comity and a reverence for the rights of the political minority that stretch back almost a quarter of a millennium.

So it’s only a matter of time — probably within a couple of months, perhaps as long as a couple of years — before all forms of the filibuster are finished off. And once that happens, the very essence of what it means to be a senator will have been destroyed.

Republicans will be responsible for deploying the final “nuclear option,” the parliamentary weapon their own leader Mitch McConnell used to describe derisively as breaking the rules in order to change the rules.

But that was back when the Democrats were in charge. They launched the Senate on its current path toward procedural Armageddon in 2013, neutralizing the ability of a minority of senators to block confirmations of all executive-branch positions and judges for the lower federal courts.

[Podcast: Not Even the Usually Lofty Senate Can Escape the Trump Tumult]

The partisan power shoes have since switched to the other feet, of course. So McConnell’s pending turnabout in the pursuit of short-term fair play will make total sense as a matter of transactional power politics, of which he’s a master practitioner.

He’s also known at the Capitol as the most powerful institutionalist remaining, someone who accords great reverence to senatorial precedents and prerogatives. But shielding that reputation, by preserving the most important remaining vestiges of what makes the Senate unique, may prove less important during the twilight of his career (he’ll be 78 when his sixth term expires in three years) than getting credit in GOP history for assuring conservative dominance of the Supreme Court for a generation or longer.

There’s little doubt he’s got support from his 51 Republican colleagues, one-quarter of whom are new enough to the Senate that they’ve never served a day in the minority. And last week, he got important encouragement from President Donald Trump, who’s never spent a day as a legislator of any kind.

“If we end up with that gridlock, I would say, ‘If you can, Mitch, go nuclear,’” the president told reporters when asked about the coming Senate debate on Judge Neil Gorsuch, his choice for the Supreme Court. “It’s up to Mitch, but I would say go for it.”

Denial? Anger? Bargaining?

Perhaps most remarkable is the evolving stages of grief for the Senate Democrats when it comes to the looming demise of the filibuster, which, in its now-limited form, creates the 60-vote minimum for confirming high court justices and passing bills.

More and more Democrats appear ready to hand McConnell the matches for lighting the nuclear fuse.

They know that a pair of back-to-back explosions will destroy their best parliamentary equipment for derailing much of the Trump program, which is pushing the judiciary unambiguously to the right while advancing an ideologically mismatched collection of policies through Congress.  

But they also are keenly skeptical the devices can stay defused forever, and so they reason they might at least seek to benefit from posing as martyrs for liberalism in the ruins of what was once “the world’s greatest deliberative body.”

Collectively, the Democrats grudgingly began the year on a different course. While they lacked a viable means for preventing a rightward resurgence at the Supreme Court, most Democratic senators had concluded, they could at least forestall things a while and, in the meantime, retain their ability to thwart Trump’s legislative crusades.

The reasoning was that it was worth holding their filibuster fire on Trump’s first court pick, since he would only be a conservative-for-conservative replacement for the late Justice Antonin Scalia, because they would thereby retain their ammunition for an all-out parliamentary fight against some future nominee who would tip the philosophical balance. And, until one of the reliably liberal justices created such an opening, the GOP would have no provocation for reining in the filibuster in any way.

There’s growing evidence of Democrats shifting to a starkly alternate approach: Mount a blockade against Gorsuch in order to force the climactic confrontation as soon as possible — conceding they’ll quickly be stripped of their power to derail him, and then any future justices, but confident that tearing the bandage off will have the benefit of galvanizing their political base for almost the entire two years until the midterm election.

That’s because many Democratic voters are demanding like-minded senators resist Gorsuch no matter what, purely as payback for the decision by Republicans last winter to keep the Scalia seat open until after the election no matter what.

Saving the village

The practice rounds for this desperate mission are now on full display, with Democrats using various amplified versions of parliamentary conventional warfare — walkouts, boycotts and talk-a-thons — to protest several Cabinet nominees.

Blocking their confirmations is no longer easy, the Democrats themselves having seen to that with their first nuclear strike from four years ago, but at least several secretaries’ paths to power are getting delayed long enough for the cable TV networks to notice and the Democratic political consultants to generate plenty of email appeals for solidarity and campaign cash.

Blowing up the Supreme Court filibuster would be the penultimate strike. And the ensuing surge of mutual contempt would almost certainly result in a gridlock on even the most routine bills, putting McConnell under unrelenting pressure to invoke the final nuclear option — destroying the filibuster during legislative debate, which would mean every bill could win passage by simple majority vote.

It’s the Hill’s version of the grim, logically tortured rationalization an Army major offered after his troops torched the South Vietnamese town of Ben Tre in 1968: “It became necessary to destroy the village in order to save it.”

A more productive legislative branch might appear, but the heart of what makes the Senate uniquely the Senate will be gone.

While laws enacted with bipartisan majorities generally last longer and look better in the history books, there will no longer be any practical reason for such bipartisanship, because there will be no need to find senators from both sides to band together to get over the 60-vote threshold

There will be no point in keeping alive the legend in which Washington and Jefferson conjured up the metaphor of the House as the tea cup brimming with popular sentiment and the Senate as the saucer where legislative passions get poured so as to cool down.

And using the “Upper Chamber” as a synonym for the Senate will be as silly in the future as it is mildly pejorative today. Instead, Congress will be composed of two comparable majoritarian institutions — the actual House and the smaller house.

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