One of the key things emphasized by Mitch McConnell both before and after Tuesday's midterm victory was the importance of restoring normalcy to the U.S. Senate by reviving traditions of consensus and the power of the minority. Harry Reid's tenure as Majority Leader was often marked by the impulse to make the Senate a tool of the White House and to minimize bipartisan debate, and Senator McConnell, along with many other Republicans and some Democrats, has expressed a desire to restore a sense of comity and independence to the Senate. There is much to be said on behalf of this desire from a conservative perspective: the Founders did not conceive of the Senate as a tool of the White House or as the instrument of a single leader but as an independent legislative branch where deliberation was encouraged. Restoring a sense of deliberation is all to the good.
But this restoration can also be a challenging enterprise, as Senator McConnell acknowledged in his press conference on Wednesday. And it seems as though one early flashpoint will be whether to revive the filibuster for presidential nominees, especially ones to the judiciary. In late 2013, Senate Democrats went "nuclear" and rewrote Senate rules in order to eliminate the filibuster for all presidential nominees with the exception of Supreme Court nominations. As I noted at the time, Senator Reid's detonation of the nuclear option did potentially serious damage to Senate Rule XXII, which says that a supermajority of votes are needed to change Senate rules, and, in doing so, injured the consensus-encouraging architecture of the Senate.
Apparently, some Senate Republicans are considering trying to bring back the judicial filibuster, and some conservatives are pushing back against this effort. A number of conservative leaders---from Gary Bauer to Phyllis Schlafly---have issued a memo warning that Republicans should not try to revive the filibuster for judicial nominees. Ed Whelan has written a compelling case for why the GOP should not restore the judicial filibuster, and Utah Senator Orrin Hatch and former White House counsel C. Boyden Gray offer their own arguments for why the GOP should not "unilaterally disarm" (a point Ed Morrissey has also reflected upon).
Opponents of bringing back the filibuster emphasize a few points. A major theme is the idea of reciprocity: if Republicans do bring back the filibuster, Democrats will use it against Republican nominees should a Republican become president in 2016, and, if Democrats regain the Senate and win the presidency in 2016 or 2020 or whenever, they will wipe the filibuster away again. So Republicans will always need 60 votes to confirm their nominees, while Democrats will only need 51. Another subtext of reciprocity is the suggestion that returning minority rights to Democrats will in fact encourage them to abuse Republicans when the GOP is in the minority; believing that Republicans will not use Democrats' own tactics against them might encourage Democrats to make even more sweeping power grabs. Whelan also finds that the judicial filibuster is a historical anomaly, only really becoming systemically applied since 2003 (when it was used against George W. Bush's nominees), so, from his perspective, eliminating the judicial filibuster only returns the nation to pre-2003 Constitutional norms.
Proponents of restoring the judicial filibuster tend to suggest a few things. A major point, alluded to by Paul Mirengoff, is the claim that some Senate Republicans may be inclined to be very deferential to the president's nominees, so a 51-vote threshold would mean that the president would only have to pick off a few Republicans in order to get an appointment through. Restoring the filibuster would, according to this theory, mean that the president would need a greater Republican buy-in for any appointment. Another point suggested by some filibuster-restoration proponents is the need to deescalate the hyperpartisan trench warfare into which the Senate has dissolved and that this deescalation has to start somewhere. Prior to the election, some GOP Senators suggested their wish to restore the judicial filibuster because they thought that that might be one place to start the process of respecting minority rights.
Wherever one stands on restoring the judicial filibuster, there are a few larger, framing issues worth thinking about:
The Reid precedent of using the "nuclear option" to gut Rule XXII is a major affront to the institutional character of the Senate. And it seems desirable to redress that affront in some way. A bell cannot be unrung, but we can try to keep that bell from being rung again.
Due to the Senate's institutional structure as a deliberative body, assaults upon minority rights will also often end up being assaults on the rights and privileges of individual Senators (in both the minority and the majority). The fact that the Senate has historically required consensus in order to function means that individual Senators from both parties usually have a significant role to play in shaping debates.
The filibuster has likely been overused in past years. Many (including this author) think that there is a role for the filibuster in the Senate, but it needs to be used responsibly. If partisan polarization deepens in the Senate and usage of the filibuster continues to escalate, the filibuster will likely continue to be reformed and/or weakened. (And the legislative filibuster is a distinct issue from one for judicial appointments.)
In his final two years, President Obama seems to be gearing up for an unprecedented (at least since Watergate) assault upon Congressional power. The Obama administration's new theory of executive power and non-enforcement of laws as placeholder or catalyst for Congressional action runs distinctly counter to many Constitutional norms. It would be helpful for Congress to speak with a unified voice in order to defend its Constitutional duties and prerogatives. If restoring Senate comity would help Congress find that unified voice, such a restoration would be an important achievement.
I'm not going to begin to guess here how much stick and how much carrot the GOP Senate majority should use in order to help restore normalcy to the Senate. The Cold War is instructive here. Unilateral U.S. disarmament was not a solution, but continued negotiations with the Soviet Union were important in keeping both the U.S. and the U.S.S.R from going nuclear. Obviously and thankfully, disagreements between Senate Republicans and Democrats are nowhere close to the existential conflict of the Cold War. If Senate Republicans are going to restore the judicial filibuster, they must have substantial buy-in from Senate Democrats. Indeed, if Senators are serious about trying to restore Rule XXII, restoring the judicial filibuster may require a two-thirds vote, thereby demanding major Democratic support. (And it is unclear whether allies of the filibuster could muster that two-thirds vote or even a bare majority at the moment. Also, restoring Rule XXII and/or normalcy in the Senate is distinct from restoring the judicial filibuster.)
The Reid precedent was problematic for the nation's affairs, the institutional character of the Senate, and, likely, many Democratic Senators themselves (after Barack Obama, Harry Reid was one of the biggest vote-getters for Republicans on Tuesday). It is in the interests of members of both parties to restore the Senate's position as an independent, deliberative body. Over the next few months, we're likely to witness many discussions about how to achieve this restoration.