An Anti-Partisan Response to Filibuster Reform and Justice Gorsuch

Let’s not overreact. The filibuster is not an essential, original, or even unique feature of the Senate. It is not a foundational piece of American democracy. It also has not been destroyed, obliterated, or “nuked.” The practice is still currently in place for new legislation and had already been eliminated for most judicial nominees by the previous Senate. All that the Senate leadership did last week was remove a narrow slice of a small rule that was until now largely symbolic.

The appointment of Gorsuch to the Supreme Court is both legal and cemented.

That said —

The filibuster was and is still a tool for consensus building, an opportunity to check the unrestrained power of majoritarians. It is a shame to see it discarded simply because consensus building is hard work, especially considering that Democrats may have had a point to make by invoking the rule:

President Trump was elected by very narrow margins and actually lost the popular vote, but rather than respect the mixed results from November, he decided to nominate a judge who is both unusually conservative and unusually young. Understandable, given that the candidate is extremely qualified to replace Scalia while at the same time playing to the President’s base, but it’s also understandable that opponents would bristle in response. On the outcome of a very close election, this appointment will influence the court for decades to come. Add in the bitter history of the Garland nomination and the filibuster seems only natural as a default reaction, even if it never made any strategic sense.

Don’t get me wrong, I’d prefer not to see the filibuster rampantly abused. Obstructionism for it’s own sake is just asinine. Instead, I’d like to see it deployed as a tool for building consensus. Perhaps Democrats could have made an offer to allow the vote on Gorsuch to go ahead, or maybe a deal for only lowering the bar instead of eliminating it outright. (A deal for what, you ask? coming soon…)

In an ideal world where leaders act in good faith — i.e. not this one — you could even imagine withdrawing the nominee in favor of a slightly more conventional candidate, at least to get a better pulse on where the real boundaries lie. I know, I know… I used the word imagine, didn’t I?

The reason I’d prefer to see a deal is that bartering and exchange are essential features of consensus-based systems. They help governing bodies find a natural equilibrium through, yes, incremental changes. It’s not a good sign if no one is even considering that as an option. That is not a healthy system.

Despite the fever-pitched reactions, losing the judicial filibuster for good is by no means a fundamental change in the nature of our republic. But it is an instance in a trend, yet another case where our leaders have opted not to do the difficult work of building consensus. That is a shame.

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