by Mitch Kokai
Senior Political Analyst, John Locke Foundation
If the choice is between the nuclear option and the Schumer precedent, then, the decision seems relatively straightforward. The nuclear option would damage the Senate as an institution (and conservatives should not kid themselves — it would damage the Senate). But the Schumer precedent would destroy the Supreme Court. Wounding one branch of government to save another seems an understandable trade.
However, in this troubled time we might be better off thinking not about how to damage institutions the least but instead about how to preserve and sustain them. The filibuster plays a crucial role in making the Senate an institution of consensus. The filibuster empowers individual senators and encourages bipartisan comity. This is especially true for the legislative filibuster. Nuking the filibuster for Supreme Court nominees (which is a relatively novel application of the filibuster) is logically distinct from the fate of the legislative filibuster. However, politics often defies logic, and another exercise of Harry Reid’s nuclear option only habituates the Senate more to the process of gutting the filibuster in all its forms.
It thus behooves Republicans and all who want to maintain the norms of Senate deliberation to try to find some way between the nuclear option and the Schumer precedent. Sean Davis of The Federalist and James I. Wallner and Ed Corrigan at the Heritage Foundation have offered one intriguing way of working through a Gorsuch filibuster: Use Rule XIX of the Senate as a way of ending the filibuster. Under Rule XIX, each senator is allowed to give no more than two speeches on a given topic during each legislative day, which is distinct from the calendar day. Extending the legislative day over multiple calendar days, the Republican majority would let each Democrat who wanted to filibuster Judge Gorsuch speak for as long as he or she wanted to but would hold each senator to only two speeches on Gorsuch. Once all filibustering Democrats had given their two speeches, a vote on Gorsuch would commence; there would be no need for a cloture vote on the nomination because, under Rule XIX, no more filibustering senators could speak.