The Old Senate Is Dead: Long Live The New Senate

John McCain and Susan Collins, two longtime moderate Republicans, worked long into the night last weekend to ensure the Judicial Filibuster on the Supreme Court remained in effect.  Despite their best efforts Democrats walked away from the table and several longtime Republicans vowed they would eliminate the last holdout on the Judicial Filibuster.  Thursday, a day before the confirmed Supreme Court nominee Neil Gorusch they made good on their threat.

It is tempting to argue this reflects the final apex of partisan politics.  Certainly partisan politics did play a part in Gorusch’s confirmation.  It was obvious Democrats were stretching for a reason to oppose Gorusch.  It was laughable to see Al Franken try to take Gorusch to take for following precedent in several of his decisions and somehow blame Gorusch for independent spending supporting his nomination.

But, the elimination of the judicial filibuster also represents something far bigger.  An end to the old Senate of wheeling and dealing, compromising and bipartisanship.  This does not mean Republicans and Democrats are fated to never work together again.  But, it does mean Republicans and Democrats will struggle to find common ground on big ticket items like climate change, tax reform and healthcare.

The road to the end of the old Senate, especially on judicial appointments can be laid at the feet of the Democratic Party.  Now, on three occasions.  Historically, judicial appointments were only held up due to wheeling and dealing in the Senate.  But this changed in 2003 when Senate Democrats filibustered several dozen of then President George Bush’s Appellate Court justices.  Ultimately, a deal was struck but the bad blood this caused remained.

When Republicans returned the favor throughout Obama’s first term the party took the unprecedented step of ending the filibuster for every court appointment but that of the Supreme Court.  The party did this despite knowing full well they faced a horrid Senate map and it might blow up in their faces.  Blow up it did.

Democrats already felt loathing to the modern day Republican Party but it has increased ten fold since Trump’s election.  Democratic Senators owing their election/reelection to a liberal core of voters were driven to oppose him at every turn.  Even moderates like McCaskill and Tester believed they were better served by opposing Gorusch than staying true to the conservative roots of their states.

Daring the GOP to eliminate the filibuster was just the final step in the old Senate, one based on congeniality and compromise, to end on judicial appointments.

It does merit mentioning judicial appointments are very different than legislative action.  For one, legislation can constantly be tinkered with and changed as needed.  But judicial appointments are take it or leave it propositions.  A judge’s philosophy is not going to change during the confirmation process.

So bad has it become in the “world’s greatest deliberative body” that Gorusch’s home state Democratic Senator, Michael Bennett, did not decide to oppose his party’s filibuster until the last minute.  It was standard practice for home state Senators regardless of party to support judicial nominees.  Bennett has said he will oppose Gorusch on the confirmation vote.

How this plays out beyond judicial filibusters is unclear.  Majority Leader Mitch McConnell has vowed he would protect the legislative filibuster.  He would probably have a hard time ending it.

Moderates such as Collins and McCain lamented the end of the Judicial Filibuster but voted for it anyway.  McCain said it was a “bad day for democracy” but supported the motion because “the Senate has changed.”  He’s right.

But, when it comes to legislation McCain and Collins probably would not nuke the last remaining check on the majority’s power.  If there was not the legislative filibuster America would be saddled with Cap and Trade, a public option in the ACA, a second and probably much larger Stimulus, and an even more onerous Dodd-Frank regulatory bill.

So, the legislative filibuster fulfills an important role and both Republicans and Democrats still recognize it.  But, as the Senate gets younger, and these members push their leadership to eliminate the traditional roadblocks to majority rule the end of the legislative filibuster is the next logical victim.  Indeed, it was younger, Senate Democrats who pushed for the end of the Judicial Filibuster.  If not for Senate elders they might have even nuked the Supreme Court in 2013.

Even these elders could hold the worst impulses of their party at bay for so long.  Democrats could not ignore the impassioned, angry cries of their base to oppose Trump at every turn.  Party leadership thus turned Gorusch’s nomination into a referendum on Trump.  Sounds like a pyrrhic victory.

On another level this represents the fallacy that direct democracy is always a good thing.  The Founders did not want Senators directly elected by voters because they knew the House was the chamber of majoritarian rule.  The same for legislative chambers that would appoint Senators.  At least there would be a degree of separation between voters and Senators.  But, that obviously changed many, many years ago.  As partisanship has increased and ideological gaps have grown so have the odds directly elected Senators would lead to a more majoritarian type Senate.

This is the new Senate America now faces.  One in which many Senators believe it should be more majoritarian, do not trust each other and have an incentive to oppose each other.  Regardless of one’s beliefs or values, it should be easy to see this is not good for America.

Ultimately, such a new Senate might benefit Republicans in the short to long run.  After-all rural states get two Senators equal to any big state, a sort of natural gerrymander.  But these things often have a way of equalizing.  Traditional GOP states like Texas and Arizona are gradually getting bluer while the Midwest has been getting redder.  So, it might not benefit Republicans.

Party leaders such as McConnell have been in politics for long enough to know political changes come and go and electoral dominance ebbs and flows.  It helps explain why McConnell, McCain and Collins are not gung-ho about eliminating the legislative filibuster.

One would think their counterparts on the other side of the aisle would feel the same way.  Except, Harry Reid showed that to be wrong and  Chuck Schumer’s actions have thus far done so also.  It is likely the GOP will hold the Senate until 2020.  Will Democrats dare the GOP to blink on the legislative filibuster?

Hopefully not.  Republicans as of yet see little incentive to do so.  After all, they can use reconciliation to repeal the worst parts of the ACA, implement tax reform and get the White House to roll back hundreds of regulations via pen and paper.  But, if Democrats incentivize Republicans to end the last major obstacle to majoritarian rule in the chamber it is not just them that will suffer.  The American people and federalism will as well.

Whichever party is in power will use this tool to implement their vision.  Ideas like compromise, forging a consensus and building broad electoral support inside the Halls of Congress and the public will be forgotten.  This new Senate will not be something to celebrate.







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