Take Care is privileged to publish this guest post by Abbe R. Gluck. Abbe is a professor of law at Yale Law School and an expert on Congress, federal legislation and health law.
I have an op-ed in today's LA Times lamenting the triggering of the nuclear option in the Senate (ending the possibility of a filibuster for Gorsuch), in particular because of its potential implications for the legislative process, nominations aside. I'm a bit surprised to find myself in a minority among vocal filibuster fans. Here is an excerpt. Please click this link for the full piece.
“When the Republicans “went nuclear” on Thursday and changed the rules of the U.S. Senate to eliminate the filibuster for Supreme Court nominations, Congress started down a path to destroy what makes that body special. The Republicans’ win-at-all-costs strategy will almost certainly lead next to the end of the filibuster for legislation, not just nominations, which would fundamentally change the culture of the Senate and be a tragic loss for our democracy.
In the Senate, unlike in the House, every vote matters, precisely because of the possibility of a filibuster, which, under the Senate rules, allows a minority of senators to block a vote. That is why moderates on both sides of the aisle are often able to exert a strong, and largely positive, influence on that body. It is why we see (albeit less often lately) coalitions of moderate Republicans and Democrats working together far more often in the Senate than in the House. It is why the Senate is known as our deliberative body.
Of course, some of this is fantasy. Some people say the filibuster allows for unproductive obstruction and has created a culture of gridlock. Others would surely point out that the Senate is often as political as any other part of government.
But when it comes to legislation — and that is where the filibuster is indeed most important — the filibuster is an essential way to ensure that we maintain some balance in government. We should all hope that the Senate Republicans, especially those who have held office for a long time, hold the line.
The Republicans don’t bear all the blame. In 2013, it was the Democrats who opened the door to the so-called nuclear option by eliminating the filibuster for non-Supreme-Court nominees. Just before then, now-Senate Majority Leader Mitch McConnell wrote in an op-ed that the filibuster was essential to maintain the “defining characteristic of the Senate. That is why all senators have traditionally defended the Senate as an institution, because they knew that the Senate was the last legislative check for political minorities and small states against the kind of raw exercise of power large states and majority parties have always been tempted to wield.
So much for that. It's only a matter of time until Republicans get frustrated in the context of policymaking, as they were in the case of the Supreme Court nomination. And, despite McConnell's promises that his nuclear trigger finger was only for the Court, it’s probably also only a matter of time until Republicans decide that the ends (enacting desired legislation) justify the means (getting rid of the filibuster for legislation).”