So You Want to Restore the Filibuster?

Reports started to trickle down last week after a GOP meeting behind closed doors of a great divide among Republican senators on whether or not to restore the filibuster for judicial nominees when they take back the majority, undoing the so-called “nuclear option” deployed by Democrats when they were in the majority. “Senate Republicans feud over whether to keep nuke option,” read The Hill’s headline.  But the internal feud does not make much sense.

I'm a simple man, so perhaps that is why I don’t understand why there should be a feud among them. It seems fairly clear that those senators who desire to bring back the filibuster should be talking to the Democrats.  Were not Democrats the ones who changed the rules?

It takes two to tango -- there's another simple concept for you. It makes no difference whatsoever what Republicans agree to if the other side does not agree with them. As senators like Ted Cruz (R-Texas) and Orrin Hatch (R-Utah) have pointed out, alongside many conservative leaders like Penny Nance of Concerned Women for America, Carrie Severino of the Judicial Crisis Network, and Ed Whelan of the Ethics and Public Policy Center, the one thing we cannot have is a situation where Republicans operate under a different set of rules than Democrats. That would effectively mean that conservative judges would need 60 votes to be confirmed, while liberals would only need 50. All Republican senators and conservative leaders should stand against that.

Therefore, people like Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina) need to talk to Democrats, before starting a fight with their fellow Republicans and a large part of their conservative base.

Perhaps they are already in talks with Democratic leadership, but I see two monumental hurdles for them.  First, Democrats have shown no interest in restoring the rule. In fact, they feel proud of what they were able to accomplish by deploying it, compared to the very small price they paid (if any), as they look back. Secondly, the Democrats’ liberal base had been clamoring for the change and will not go along with going back. So they will have to pay a heavy price with their own base if they want to unite with Republicans to restore the rule.

Having procured some type of agreement with Democrats, Graham, McCain and the others who want the filibuster restored have an even harder hurdle to overcome. They must convince their colleagues and the rest of us (if they care about 2016) that the agreement means something. Taking recent events into consideration, the Democrats’ word is trading at an all-time low in the public policy market. Can anyone trust anything they say?

Even if you leave out the, “If you like your plan, you can keep it” or Gruber, or the unilateral action on immigration that they promised would never happen, on this very topic the Democrats had stood proudly and vociferously in condemning the use of the nuclear option when they were in the minority. But all that talk meant nothing once they were in the majority. Can anyone be confident they would not do so again?

But hey, if Sens. McCain, Graham, and other supporters are able to get over those hurdles, I am confident that their whole caucus along with conservative leaders will support them. This is the question those who oppose restoring the filibuster rule have asked that no one has an answer for, “How is it going to be restored in a way that both sides play by the same rules?”

Critics continue to focus on “the great institution of the Senate,” but that is an argument they should be making to the Democrats, who have disregarded that already, not to fellow Republicans and conservatives who may agree with them but see no way that Democrats will abide by anything but what they can get away with.  And we know they can get away with the nuclear option on lower court judicial nominees. They have proved it.

So to recap, here is the plan of action I would suggest to supporters of restoring the nuclear option: (1) stop attacking your own side of the aisle and go talk to Democrats to see if you can work up a credible agreement, then (2) present the agreement to your own side to gain their support.

Short of that, Republicans are not restoring anything, but only closing their eyes and pretending the world is not what it is.  That sort of wishful thinking will only aggravate the situation, not help it.

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