In a proceeding unlike any previously witnessed in its history, the U.S. Senate, just a week before a presidential election, confirmed the nomination of Judge Amy Coney Barrett to the Supreme Court.
While the judge is, in my opinion, fully qualified by experience, intellect and temperament for a seat on the Supreme Court, the fact is that, with her elevation, the 5-4 ideological split that has characterized the Court in recent years will shift to a decidedly more conservative 6-3 ratio. As I noted in a previous post, this imbalance creates a substantial chance of the Court drifting so far out of alignment with the country at large as to endanger its own credibility. That danger has only been enhanced by the events that led us to this point – events whose momentum may lead to even more trouble before long.
At stake is not only the standing of the Supreme Court in our governing system, but of the Senate as well. The fact is that we are now well into a gigantic game of political tit-for-tat that will leave the Court changed for a generation and the Senate, very likely, forever. I won’t venture a guess at how history will judge those changes, but at the very least we whose government this is supposed to be need to understand what is happening.
No story of this historical magnitude ever has either a clear beginning or end, but this one might conveniently be taken up on November 20, 2013. That was the day when Senate Majority Leader Harry Reid led Senate Democrats through a minutely choreographed series of procedural steps — the so-called “nuclear option” — which eliminated the minority party’s capacity to use a filibuster to prevent or delay any presidential appointments except those to the Supreme Court. This exercise of raw majority power implanted in the offended Republican minority a determination to get even at the first good opportunity.
As I recounted in Chapter 2 of Citizens Uniting to Restore Our Democracy, that opportunity would arise whenever the Republicans found themselves in control of both the Senate and the presidency. The only question would then be whether to use the nuclear option to deny the Democrats the power to filibuster substantive legislation or Supreme Court appointments. The answer came when Justice Scalia’s totally unexpected death in February of 2016 was followed by Mitch McConnell’s unprecedented stonewalling of President Obama’s nomination to fill the vacancy and then by Donald Trump’s Electoral College victory.
So it was that on April 6, 2017, McConnell retraced Reid’s steps and the next segment of the filibuster wall was demolished. As a result, the Democrats, who had begun the dismantling, would eventually find themselves powerless to stop or even to influence not one but three Trump appointments to the high court. Enflamed with rage at the Republicans first holding up an appointment for nearly a year because it was an election year and then rushing through another just days before an election, the Democrats all but promised their own round of retribution whenever the tables turned once again in their favor.
If that happens next week – if Democrats regain control of both the presidency and the Senate – the next round of retaliation will apparently take either or both of two forms. First is the “court packing” option by which the conservative majority on the Court would be reversed. The second option would be to complete the demolition of the filibuster by barring its use against substantive legislation.
The court-packing option is fraught with danger. By its nature, it is an activity that practically guarantees its own cycle of tit-for-tat escalation as the parties, over time, trade dominance in Congress. More generally, court packing would openly politicize a Court that has already seen its legitimacy threatened by all too much politics. The better course here would seem to be to give the Roberts Court at least one term in which to explore principled paths of judicial conservatism that would minimize its decisions’ variance from prevailing American norms. If the Court finds a way to thread those rapids, it might avoid the heavy hand of political intervention.
The other option that Democrats will surely consider if they control both the presidency and the Senate – the removal of minority power to filibuster substantive legislation – would do less damage — and may in fact bring some healing — to our governing system. For some time now, the Senate filibuster has been a major contributor to the inability of Congress to address major issues facing our society. Next to campaign finance and redistricting reform, filibuster reform has long been seen by many as a component of any long-term movement toward democratic renewal. That it should come about primarily as an offshoot of an otherwise vicious cycle of partisan retaliation may be historically inelegant, but perhaps it was the only way it could happen.
The fact is that, even without the filibuster, the Senate will emerge from these times a badly damaged institution. When Webster, Clay and Calhoun debated the great issues of the day, as in the image above, the Senate might credibly be referred to as “the greatest deliberative body in the world.” Now, between the influence of unlimited money in Senate campaigns and unrestrained partisanship in the Senate’s day-to-day proceedings, the very idea of “deliberation” in that setting seems farfetched.
And yet, given the scale, depth and complexity of the problems we face as a nation (and indeed as a species), genuine deliberation as a path to sustainable solutions has become more indispensable than ever. The good news is that citizens across the country, assisted by a steadily expanding number of creative organizations, are developing deliberative skills in all kinds of settings. One of the exciting challenges for the coming decade will be for citizens to begin to infuse that deliberative abundance back into our larger democratic institutions.