The Senate and SCOTUS — A Modest Proposal

Since the nomination of Merrick Garland has been held up all year, and is at this point likely dead, President Trump may nominate as many as three (even 4?) Justices to the Supreme Court.

The Senate, of course, must approve those nominations. Historically, this would have been subject to a 60-vote requirement to overcome any minority-party filibuster. But retiring Senate Minority Leader Harry Reid eliminated that precedent, and, indeed, even two weeks ago sought to permanently “nuke the filibuster.” We may therefore expect that even a bare majority in the GOP-held Senate could approve each of those nominees.

Perhaps today Democrats can better see the folly of Harry Reid. Even some Republicans are uneasy at the prospect of President Trump’s SCOTUS picks.

I believe that Senate Majority Leader Mitch McConnell should, in the interest of national unity, allow the Democrats to restore to the Senate the historic protection of the filibuster.

He should announce that he will, in this session, schedule hearings for Merrick Garland on the condition that each member of the Senate — every single one, without exception — go to the floor of the Senate, and make a public pledge of support for the filibuster, along the lines of: “I solemnly renounce and abjure the disastrous and demagogic policies of Harry Reid which so gravely imperiled the historic safeguard that is the filibuster, and put our republic in jeopardy of descending into the ugliest form of mob rule.”

Since no Senate can bind a future Senate, this show of support for the filibuster will be necessary at the start of each term. Incoming Senators should be required to make the same pledge in January. Without such a show of national unity and resolve, McConnell should declare the filibuster dead and delete it across the board from all Senate rules.

Would this be humiliating for Democrats? Absolutely. So it might tempt the Republicans, who, otherwise, will want to wait for Trump’s nominee and those who will come later.

But swallowing their pride would be good for Democrats. Being (sort of) generous in victory would be good for Republicans. And restoring a strong filibuster would be good for the country, and not only in the area of SCOTUS nominees.

If nothing else, the election of President Trump and a GOP Senate should teach us that it is dangerous to take power into our own hands that we would be terrified to see in the hands of our political opponents.