It is tempting when confronted with the obstructionist behavior of the current Senate minority to focus on rewriting the Senate’s rules so that the majority can work its will. This would, if successful, treat the symptom but ignore the disease. The disease is a deeply polarized and inflexible political environment that frustrates the spirit of constructive compromise a vibrant democracy demands.
Senators are increasingly reluctant to confirm lifetime appointments that allow fresh partisans to populate the bench. Democrats blocked several of President George W. Bush’s nominees because they thought them too ideological and extreme. Now, the Republicans are returning the favor.
The 60-vote threshold is not the problem. In fact, it’s not such a bad idea to require appointments to the bench to be mainstream enough to command some support from the minority.
In any event, any proposal to change the Senate rules will require a bipartisan supermajority. President Obama’s suggestion in the State of the Union address and Professor Painter and Gerhardt’s proposal are both silent on this reality.