At the risk of sounding like a hapless adolescent who is completely naive and doesn’t understand how the sausage is made in Washington, it’s past time for the more responsible Senate Republicans and Democrats to sit in the room and a defuse the parliamentary nuke that is about to go off this week.
Yes, launching any negotiations at this late stage in the game will be incredibly difficult. We are only a few days away from Senate Majority Leader Mitch McConnell practically throwing a grenade into the Senate chamber and blowing up the place. Trust between the parties is non-existent at this point. Minority Whip Dick Durbin, D-Ill., told Roll Call that, while avoiding the nuclear option is everybody’s preference, “I think it becomes increasingly difficult to figure out whom we trust to negotiate anything.”
Sen. John McCain, a former member of the Gang of 14 that saved the Senate from implosion a decade ago, isn’t all that optimistic about a prospective deal, “because there’s much more partisanship, there’s much more outside influence on both ends of the spectrum, and you don’t have the kind of comity that you had in those times.”
Without some kind of arrangement, the Senate is one more notch away from becoming a more distinguished House of Representatives. If senators want to dodge the bullet, they need to act now and think outside-the-box.
Some of these options are politically impossible, while others will be tough for senators to swallow. But here are some ideas:
1. Take Senate Minority Leader Chuck Schumer’s advice and withdraw Judge Neil Gorsuch from consideration in exchange for a more centrist jurist. Republicans have already stated time and time again that this kind of demand is silly and unreasonable.
If the GOP did withdraw Gorsuch from the process, they would be tarnishing a good man and firing up a GOP base that would surely take it out on incumbents in the 2018 midterms. But it would also serve as a kind of apology by Senate Republicans over how they treated Judge Merrick Garland last year. Again, probably politically impossible.
2. Construct a Sense of the Senate resolution that would codify an informal, “Gang of 14”-type agreement that keeps everybody honest and decreases the possibility that senators will renege on their commitments. If those promises weren’t kept, the party breaking them would likely experience such terrible public relations and public blowback that the leadership may very well be scared into retreating.
The deal could be temporary (Gorsuch will be afforded an up-or-down vote in return for an explicit, written GOP promise not nuke the filibuster during the next Supreme Court nomination fight) or more permanent (after Gorsuch is confirmed, all Supreme Court nominees, without exception, will be required to attain at least 6 senators of the minority party to proceed to a final vote).
All of these deals and numbers would be utterly arbitrary and random, but if a Supreme Court nominee can convince six members of the minority party that he or she is fit for the job, chances are that the jurist wouldn’t be an extremist on the bench.
3. A grand bargain between the Republican and Democratic leaderships that, after Gorsuch is dealt with, the Senate will return to the 60-vote requirement for all cabinet level and Supreme Court nominees, with the nuclear option to be used only in exceptional circumstances. McConnell would get a win (Gorsuch on the bench) and Schumer would get a win (the resurrection of the filibuster for a broader category of nominations). Unfortunately, the term “exceptional circumstances” will continue to be in the eye of the beholder.
If there are better ideas out there, they should be debated before it’s too late. We are talking about the integrity of the Senate as an institution.
Daniel DePetris (@DanDePetris) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a fellow at Defense Priorities. His opinions are his own.
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