photo by Gage Skidmore
With the Supreme Court nomination of Neil Gorsuch expected to come to a climactic Senate vote this week, we might think the House of Representatives is sidelined in this particular partisan battle. But I’m not so sure.
Although seemingly far removed from the battle over the high court, the obstruction of Republican leaders’ health care overhaul by their party’s most conservative members might, in fact, have been partly intended to force changes in the way the Senate operates – changes that would make the Senate more like the House. It is an agenda that could succeed, although I doubt Democrats will ultimately let it happen this week.
There are currently two major differences between the House and Senate. One is that the Senate drastically enhances the influence of small population (typically more rural) states, since every state gets two votes; in the House, representation is proportional to population and is adjusted among the states after each decennial census. The other difference is that in the Senate, a single senator can block or delay most actions via a filibuster, which can only be ended with 60 votes in favor of “cloture,” which shuts off debate.
At the nation’s founding, both chambers allowed unlimited debate. The House changed its rules well before the Civil War, but the Senate gave individual senators a virtual veto over any action until the end of World War I. It was only then that the Senate changed its rules to allow cloture with a two-thirds vote of the chamber. The threshold was lowered to three-fifths in the 1970s, and then – in 2013 – Democrats under the leadership of then-Sen. Harry Reid eliminated filibusters entirely for cabinet appointments and judicial nominations below the Supreme Court level.
If Democrats seek to filibuster the Gorsuch nomination, as Minority Leader Chuck Schumer (D-N.Y.) has promised, it will take at least eight of their members joining the Republicans to allow a confirmation vote to proceed. Majority Leader Mitch McConnell (R-Ky.) has promised that if a cloture vote fails, his party will use its 52-48 majority to extend Reid’s rule change to Supreme Court nominations. At that point, Gorsuch will likely be confirmed on close to a party-line vote.
Now we get into the gamesmanship, and the possible behind-the-scenes role of the House Freedom Caucus of conservative Republicans in playing it.
If the Senate simply abolished the filibuster, just as the House did so long ago, there would still be a difference between the two chambers – but that difference would dramatically favor the Republicans, since in today’s America the conservative heartland is greatly over-represented in the Senate. Even though the House, too, is currently controlled by Republicans via the backlash against Obama-era policies earlier in this decade, in the long run GOP influence in the House is a more tenuous commodity. So from the viewpoint of conservative House Republicans, the goal is to get as much of their agenda signed into law as possible while their party controls both houses of Congress plus the White House.
But the filibuster is a huge obstacle. House Speaker Paul Ryan’s health care proposal was initially designed to let Senate Republicans enact it via a budget reconciliation procedure that is exempt from filibusters, leaving other reforms to a later date and possible compromises with moderate Democrats to overcome a filibuster. Even then, the legislation’s prospects in the Senate did not look good. Absent the GOP attaining a 60-vote supermajority in the Senate, which is unlikely to happen any time soon, implementing the GOP’s conservative agenda virtually demands that the filibuster be eliminated – not just for judicial appointments, but for legislation as well.
Senate “institutionalists,” such as McConnell and fellow GOP veterans like Lindsey Graham, John McCain and Orrin Hatch, recoil at this prospect. They still see their chamber as a distinguished club, a debating society whose rules and traditions encourage compromise and bring Americans together. Their anti-populist leanings echo the earlier days of the republic, in which senators were not even directly elected by the population until the 17th Amendment took effect in 1914. To the House GOP insurgents, these Senate stalwarts must look like dinosaurs, struggling to nourish themselves from the last green leaves of the forest canopy even as the meteoric dust flies around them. The Freedom Caucus certainly took note of Virginia Sen. Tim Kaine’s promise, when he was Hillary Clinton’s running mate, to end Supreme Court filibusters if Democrats retook the majority.
So what is happening now is not just a fight over Gorsuch’s nomination, or even the future direction of the Supreme Court. It is ultimately a fight over the nature of the Senate itself. And it is one that Democrats cannot win if the Republicans decide to engage while they still have the majority.
Democrats know this. My guess is that this week’s filibuster will be a show put on to satisfy the party’s base, still outraged that McConnell did not allow a hearing or a vote on President Barack Obama’s nominee, Merrick Garland, to fill the current open seat. A few Senate Democrats from states that voted for Donald Trump will at least vote in favor of cloture – at this writing, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota had said they would do so – but I doubt that will be enough to reach the 60 votes needed to end debate.
But before McConnell proceeds to change the rules, I think he will get help from a few hardcore liberal Democrats coming from solidly blue states. These could include California’s Dianne Feinstein, Connecticut’s Richard Blumenthal, New Jersey’s Robert Menendez and Delaware’s Chris Coons, all of whom ended last week officially uncommitted on the nomination. They will explain to their constituents that they voted to end the filibuster because Gorsuch was going to be confirmed regardless and in order to preserve their leverage to fight a future nominee who would more substantially alter the court’s balance. None of these senators are likely to pay any political price for such pragmatism, and their flexibility provides cover for their less-stalwart compatriots.
The battle for the soul of the Senate is just beginning. House conservatives will likely continue to try to push to the right, pressing McConnell to decide whether to turn the Senate into a majority-rules institution or forfeit this window – which may not survive the next election – to enact Republican legislation. If nothing else, he may put Democrats on notice that their next filibuster could be their last.