Just days after Republicans wiped out the attempted Democratic filibuster of the nomination of Supreme Court Justice Neil Gorsuch, a Democratic senator is pledging to reinstate the so-called “nuclear option” when and if his party retakes the majority.
“When the Democrats return to the majority and capture the presidency — which we will, that day is going to arrive — we will restore the 60-vote margin,” Massachusetts Sen. Ed Markey said in an appearance on MSNBC on Monday. “We will ensure that for the Supreme Court that there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people that are nominated rather than just someone who passes a litmus test.”
Let me shake my Magic 8 Ball and see what it says about Markey’s pronouncement. “Very doubtful.” And that’s being kind.
It’s easy for Markey to make a pledge like this with President Donald Trump in the White House and Senate Republicans in the majority (and facing a 2018 map that decidedly favors their side). It allows him to stake out the moral high ground without any real-world consequences. Saying that we would do it like the Founders wanted it done if you were in charge is only a tough thing to say when you are actually, you know, in charge.
The history of politics suggests that the chances of Senate Democrats actually reinstating the 60-vote threshold to end debate (and bring up a vote) on a future Supreme Court nominee is somewhere between “no way” and “zilch.” Pandora’s box, once opened, doesn’t voluntarily shut itself.
Go back to how we got here. In 2013, then Senate Majority Leader Harry Reid, D-Nevada, changed the filibuster rules on Cabinet appointments and federal judges to allow debate to be ended in the Senate with a simple majority vote. Though Reid purposely carved out an exception for Supreme Court nominations — which, at that time, still required 60 votes to close debate — the expectation, even among Democrats, was that if Republicans ever got into the majority and controlled the White House, they would wipe out the filibuster for high court nominees too. That, of course, is exactly what happened.
Politics operates on the “what’s good for the goose is good for the gander” maxim. If Democrats can change the Senate rules to get the judges they want confirmed, then Republicans can too.
And the smart political minds on both sides know that average voters simply don’t care about the arcana of Senate rules. No Senator on the ballot in 2018 is going to lose over the nuclear option vote. Not a single one.
Which means, of course, that if/when Democrats come back into power in the Senate (and the White House), they will have absolutely zero political incentive to make a rule change that would tie their hands in terms of who a Democratic president could nominate to the highest court in the country.
In other words: What Markey is doing is just talking. Asserting your side as the party committed to maintaining the bedrock institutions of democracy is all well and good. But it’s worth remembering that when Democrats were in charge of the Senate and the White House, they did their part to weaken the filibuster too.
All of which means there’s an infinitesimal chance that Senate Democrats will actually follow through on Markey’s promise to reinstate the filibuster rule whenever they take control again. Maybe smaller.