The Senate Republicans, by blatantly and transparently obstructing President Obama’s judicial nominations, have goaded the Democrats into an historic mistake. To reach understandable ends, they have adopted tragically flawed means. By use of the so-called “nuclear option,” Senate Democrats have now established the principle that a simple majority in the Senate can change any rule at any time.
In my judgment, the inevitable consequence of this action will be the elimination of the filibuster for all nominations and eventually for legislative matters. This amounts to an abandonment of the foundation of the Senate’s more than 200 years of protection of the minority. The cornerstones of that protection are extended debate and the unfettered right to offer amendments. Given the new precedent, majorities will do what majorities do, that is take control. The Senate will over time become a majoritarian body like the House of Representatives where debate is limited and legislation is often considered with no amendments in order. Then as we see in many state legislatures where both houses and the governor are of the same party, there is little recourse for the minority.
In 2010, just a few months before his death, Senator Robert Byrd, the Senate’s greatest expert on its rules, wrote: “If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.”
Now the Senate’s majority has chosen just such a draconian path. I fear the damage may be irreversible. Majorities seldom, if ever, yield power back to the minority.