Harry Reid and the Democrats are today finally seeing what so many warned them of when they eliminated the filibuster on all presidential nominations except the Supreme Court. Betsy DeVos would not have been confirmed without the Democrats’ precedent.
Republicans are now considering the same for the Supreme Court if Democrats try to filibuster Neil Gorsuch’s nomination. I actually do not think the Democrats will mount a successful filibuster, and if they do I think the precedent has been well established to kill off this last filibuster of nominations. But, I also think the GOP need not go that far at first.
As Sean Davis and others are pointing out, the Senate GOP can force the Democrats to mount an actual filibuster and focus on the two speech rule. The Senate cutting off action because of a threatened filibuster is just custom, but not rule. The rule requires an actual filibuster. What of this two speech rule? From Sean Davis:
In simple terms, it means that once each senator has spoken twice on a matter, debate on that matter is concluded no matter what. It means that a final up-or-down vote is guaranteed. It does not preclude the Senate from invoking cloture before all senators have spoken twice, nor does it preclude the Senate from proceeding to a final vote in the absence of continued debate. Unlike the nuclear option, which kills debate instantly at the whim of the majority, enforcement of the two-speech rule effectively sets a limit on debate.
As the Republicans are seeing with the Democrats’ eradication of the filibuster for nominations, turn about is fair play. The day will come that the Democrats use the elimination of the Supreme Court filibuster to put a leftwing Justice on. The day may even come where the Democrats, in a desperate bid to preserve the right to murder children, will expand the number of seats on the Court and then use the elimination of the filibuster to stack the Court.
Trying this before eliminating the filibuster would be prudent. Let the Senate Rules work.