In 2013, the Senate Democrats, then in the majority, dragged the Senate out onto a slippery slope. Using a controversial procedural ploy, labeled the "nuclear option," they reinterpreted the Senate's rules to restrict filibusters on presidential nominations except for the Supreme Court.
That action has already come back to bite the Democrats. Many Democrats oppose a number of President Trump's Cabinet nominees or, at least, object to the speed at which they were moved through the committee process. Senate Minority Leader Chuck Schumer (D-N.Y.) opposes eight.
Nonetheless, without the leverage of the threat of a filibuster creating a 60-vote threshold (sometimes the actual use of the filibuster is not necessary,) every Trump executive branch nominee is now virtually certain to be confirmed.
Schumer has expressed regret for the action Democrats took in 2013. "Wish it hadn't happened," Schumer said. He told CNN, "I argued against it at the time. I said both for Supreme Court and in Cabinet should be 60 because on such important positions there should be some degree of bipartisanship. I won on Supreme Court, lost on Cabinet. But it's what we have to live with now."
On Tuesday, Trump announced Judge Neil Gorsuch as his nominee for the late Antonin Scalia's seat on the Supreme Court.
Now, the slippery slope comes back into play.
Trump is urging the GOP majority to slide down that slope by expanding the precedent to include Supreme Court nominations. This can hardly be a surprise, given the disdain with which he dismisses Congress as "all talk, no action."
And to be fair, presidents as a rule are not fond of the filibuster. After all, it interferes with the swift passage of their agenda.
To his credit, Senate Majority Leader McConnell (R-Ky.) has publicly told the president, "That's not a presidential decision. That's a Senate decision." Now, McConnell has not taken use of the nuclear option to confirm a Supreme Court nominee off the table, but he has signaled that he prefers to avoid further damaging the Senate rule.
I suspect there are senior members of the Republican caucus who agree with him and oppose using the nuclear option.
Slippage farther down the slope is problematic for two reasons.
1. Weakening the filibuster writes the minority out of Supreme Court confirmation deliberations.
No president would ever have to take the opposing party's view into account unless it controlled the Senate. This would permanently politicize the selection of Supreme Court justices.
Republican Sen. Lindsey Graham (S.C.) said it well: "When you go simple majority, you basically turn it over to one party and many times you get the harshest of the harsh."
The late Democratic Sen. Edward Kennedy (Mass.), in a 2005 floor debate, declared much the same view: "Neither the Constitution, nor Senate rules, nor Senate precedents, nor American history, provide any justification for selectively nullifying the use of the filibuster. Equally important, neither the Constitution nor the rules nor the precedents nor history provide any permissible means for a bare majority of the Senate to take that radical step without breaking or ignoring clear provisions of applicable Senate rules and unquestioned precedents."
2. Expanding the questionable application of the nuclear option to include the Supreme Court heightens the danger that the entirety of the filibuster process — that is, on all legislative matters — will be swept away in the same fashion.
For example, if the GOP is successful in using the reconciliation process (which circumvents the filibuster for some budgetary items) to repeal ObamaCare, what happens when they seek to replace it with something else? That legislation would not have reconciliation protection and therefore must potentially overcome a filibuster.
Does anyone doubt that an enraged Trump would not immediately demand the use of the nuclear option to squash the filibuster? Would the GOP Senate majority be capable of resisting the pressure under those circumstances?
A Senate without the filibuster rule becomes a majoritarian body where the majority simply takes control. This leaves the Senate as little more than another House of Representatives.