I’ve seen a ton of chatter on political twitter about Harry Reid’s move to nuke the filibuster for Senate confirmations back in 2013, with his recent passing and the Democrats facing a similar dilemma with leadership trying to get the caucus behind a nuclear option to get voting rights legislation passed. I think discussion about that move often runs into the trap a ton of people seem to fall into with the filibuster.
Rules and norms don’t exist in a vacuum. People often talk about the long-view of filibuster rules as only what the backlash will be from the other party if the rules were changed. The problem is that there are things the government needs to do, and in a system like we have in the US where there are ways to grind everything to a halt, a change in norms needs to factor in not only how the political balance will shift but also what long-term effects the current status quo would be for essential government functions.
Back in 2013, the political precedent was set that filibustering judicial nominations could be the rule rather than the exception - or in other words that the minority party could blanket filibuster every single nomination. Even if we entertain the thought that protecting the filibuster for lower-level confirmations would have protected it for the SCOTUS when the GOP came back into power, that still leaves us in a dysfunctional place. If the norm had never been changed, the existing norm would have led to a perpetual state of federal court positions not being filled. If we just continued that until now, we almost wouldn’t have a federal court system anymore.
That’s basically where I think the focus should be in 2022. The truth is that carving out an exception to the filibuster that is narrowly tailored to voting rights won’t work. A future GOP majority is perfectly free to interpret the political precedent as “the majority gets to carve out whatever exception they want”. However that isn’t the central issue. The central issue is whether the Democratic voting rights proposals are an essential function of government and if there is no better way to enact them than to nuke the filibuster. Because if both of those things are true, the Democrats have no choice but to nuke the filibuster (or effectively change it so that it can’t stop their voting rights legislation).
It isn’t enough to say “the Democrats shouldn’t go nuclear now because the GOP will ban abortion in 2024”. For this to be a defensible position, one needs to explain the alternate path the Democrats could take.