Will the Senate nuke itself? by Marjorie Arons-Barron

The entry below is being cross posted from Marjorie Arons-Barron’s own blog.

Once upon a time, when students learned civics  in high school, we were taught that one of the  inspired decisions of  our Founding Fathers was the creation of a bicameral Congress with different yet complementary roles.   The House was closer to the people, its members serving two-year terms. It was the “cup,” containing the passions and priorities of the moment.  The Senate, whose members served six-year terms, was the more sober and reflective  body.  It was the saucer on which the hot cup of House emotions was left to cool.

The House only needed a simple majority of to pass legislation. The Senate, taking seriously its advise-and-consent function, required, if necessary, a super majority (60) to make a decision. This encouraged more compromise, consensus-building and the ability to avoid extremes  in policies and appointments.  And historically this division has served us well. As several Senators have said, “if a nominee can’t get 60 votes, don’t change the rules, change the candidate.”

Senate Majority Leaders Mitch McConnell, however, intends to break the Democrats’ filibuster of Supreme Court nominee Neil Gorsuch by changing the rules. His hypocrisy is jaw-dropping, claiming it’s the Democrats’ fault rather than a reflection of the GOP’s profound contempt for the Constitution in refusing even a hearing for Obama nominee Merrick Garland.

It now seems likely that, as early as tomorrow,  the saucer could vote to shatter itself.  If it does, the dream of our Forefathers could be unalterably damaged. As Senator John McCain  predicted, consensus will forever be lost to us.

It’s a truism that elections have consequences. We knew it in last fall’s election, in which control of the Supreme Court figured importantly. The Democrats blew a good chance to take back the Senate and block any nominee whose views and character they disapproved. But Democratic battleground state candidates  lost, often by greater margins than did Hillary Clinton. Now, with a Republican-controlled Senate,  custom should dictate that a highly credentialed Republican nominee be approved, even with some Democrat support, as were George W. Bush nominees Samuel Alito and John Roberts.

But this is no ordinary time.  Senate Majority Leader Mitch McConnell,  repeatedly ignoring that elections have consequences, put making Obama a one-term president a higher priority than serving the public interest. He and his Republican colleagues abused their Constitutional roles and repeatedly blocked highly qualified federal appointments, including federal judges,  just because they were nominated by President Obama.

Frustrated that the nation’s business was being strangled and unable to reach any reasonable compromise, then-Majority Leader Senate Harry Reid forced a rules change concerning  federal appointments, requiring a simple majority. The procedure concerning Supreme Court appointments, requiring a super majority of 60 votes, was sacrosanct. And well it should be. Unlike any other position in the federal government, a confirmed Supreme Court justice is appointed for life, and his or her decisions are not reviewable or reversible by any higher authority.

The shameful sabotaging of Judge Merrick Garland’s nomination  set the stage for the upcoming showdown.  Republican Senators claimed their refusal to hold a hearing was correct because it was the last year of President Obama’s term. Their sham excuse is no more valid  than an argument that no President who did not win both the electoral college  and popular vote should legitimately be able to appoint a Supreme Court justice. This is just raw partisanship of the crudest kind.

It’s argued that Democrats should let Neil Gorsuch be approved now and wait to force the 60-vote rule until a seat vacated by one of the liberal justices is at stake. This approach did have some merit and was presumably part of quiet negotiations between McConnell and Minority Leader Chuck Schumer.  MConnell was unyielding. So if he is prepared to use the “nuclear option,” change the rules and blow up the Senate, its mores and its august self-image, why wait?

By the end of this week the United Senate, becoming a simple majority institution, will cease to exist in its civics book model. And we will all be diminished because of it. Then again, the years of  hyperpartisan  toxicity may have already made the upper chamber uninhabitable,  and the nuclear option is merely providing last rites.

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