04/07/2017

How To Stop Worrying And Learn To Love The Nuclear Option

John Yoo and Sai Prakash, Wall Street Journal

The Senate has gone nuclear again. After Democrats voted to “filibuster” the Supreme Court nomination of Judge Neil Gorsuch, which would have required 60 senators to agree to bring the appointment to a vote, Republicans effectively changed the rules to allow a simple majority to confirm Supreme Court justices. From this partisan clash, democracy will emerge the winner.

Democrats are crying foul, and Republican “institutionalists” have been expressing their regrets. The Democrats had every right to try a filibuster, a political tool with deep Senate roots. But the Republicans also had every right to abolish the filibuster for Supreme Court nominations. In 2013, Democrats under the leadership of Harry Reid made the same change with respect to all other appointments.

When Republicans made clear they would take the next step, Minority Leader Chuck Schumer said it was somehow a “bigger mistake” than the one the Democrats had made in 2013. Delaware’s Sen. Chris Coons called it a “tragic” choice. Only three Democrats dissented from Mr. Reid’s effort in 2013—and neither Mr. Schumer nor Mr. Coons was among them. The shoe always pinches when it is on the other foot.

But Republicans had more than revenge on their side; they have the Constitution. Article II, Section 2 creates no special vote threshold for nominees. By contrast, it explicitly requires “two thirds of the Senators present concur” to approve treaties. The Founders never constitutionalized the filibuster; the first one occurred in 1837. Congress managed to reach fundamental decisions—the creation of the first departments, the proposing of the Bill of Rights, the establishment of Hamilton’s national bank—without it. No filibuster was necessary then to secure a senatorial consensus. Nor, as the Gorsuch conflict demonstrates, can a filibuster today heal partisan polarization.

A Senate minority can still filibuster legislation, though there has been talk of reforming that rule too. As senators consider future steps, they shouldn’t pay much heed to concerns about the filibuster’s protection of the minority. The Senate’s very structure is minoritarian, giving small states a disproportionate share of legislative power. The least populous 25 states have less than one-sixth of the U.S. population but account for half the Senate’s members.

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