Fred Bauer has written an interesting opinion piece for National Review Online, "The Rule XIX Solution", in which he suggests that there is a way to sidestep "going nuclear" and ending the Senate's filibuster rule so that body can then proceed to a vote on whether or not to confirm Supreme Court nominee Neil Gorsuch.
Bauer, pointing to ideas from officials at the Federalist and the Heritage Foundation, suggests that if this obscure rule were invoked, senators would be allowed to filibuster, but not forever:
Under Rule XIX, each senator is allowed to give no more than two speeches on a given topic during each legislative day, which is distinct from the calendar day. Extending the legislative day over multiple calendar days, the Republican majority would let each Democrat who wanted to filibuster Judge Gorsuch speak for as long as he or she wanted to but would hold each senator to only two speeches on Gorsuch. Once all filibustering Democrats had given their two speeches, a vote on Gorsuch would commence; there would be no need for a cloture vote on the nomination because, under Rule XIX, no more filibustering senators could speak.
Bauer believes in preserving the filibuster because, he suggests, by its nature it obliges deliberation. As I have said many times before in my blog, I am not at all certain about that. (See here, here, here, and here.) If senators wished to be collegial and deliberative in their approach to legislation, even in the absence of a filibuster rule, they could be; nothing stops them.
The filibuster seems to me more like a weapon used to repeatedly defeat the majority for partisan minority purposes, since it means that for everyday legislation, nothing will pass the Senate without a 60-vote margin. Thus nothing gets done. Wishing that the filibuster rule facilitated dialogue and deliberation and collegiality in the Senate doesn't make it so.
The filibuster as a tool for forcing deliberation only works if the intent of the filibuster is to oblige such dialogue. If, as has been the case for the past eight years of the Obama administration, it is used instead by the Senate minority to bottle up any legislative action that doesn't "meet spec" for its progressive agenda, whether that legislation was initiated by the Senate or was a bill passed over from the House, then we should be honest in recognizing it for the giant legislative cork that it has become. It doesn't just adversely affect the Senate — it kills productivity in both chambers of Congress.
And with specific reference to Supreme Court nominations, consider these additional comments of Bauer's:
Applying Rule XIX would exact a price from the majority (they couldn't confirm Gorsuch instantly), but it would also cost the minority, which would have to mount a talking filibuster against Gorsuch knowing that, eventually, that filibuster would be ended by Rule XIX.
The operative word here is "eventually". In the meantime, absent that ninth member of the Supreme Court, there are any number of decisions emanating out of activist federal district or circuit courts who choose to make laws instead of interpret them that will for all intents and purposes become the law of the land.
The president's executive orders on refugees and visa vetting, and on ending funding for sanctuaries, are two absolutely crucial areas that come immediately to mind in the context of immigration matters likely to come before the Court as the result of lawsuits.
There are others too, though, like a just-handed-down decision from a panel of the infamous Ninth Circuit that would permit aliens who crossed the border illegally, but who later benefited from the consistently abused Temporary Protected Status program (TPS), to claim that TPS constitutes a legal admission — it doesn't and was never intended to — and that therefore they are entitled to apply for resident alien status.
While I don't posit that Gorsuch's presence will always give conservatives the results they wish, what I do know is that virtually nothing will be reversed while the Court is in a stalemate, and that this stalemate would be near indefinite should Rule XIX be invoked instead of eliminating the filibuster for Supreme Court nominees.
And after elimination of the filibuster for the confirmation process? Maybe the spotlight will begin to shine on the Senate's inactivity on so many worthy bills that have languished for years in that body. Maybe that was okay during the prior presidency, since Mr. Obama would almost certainly have vetoed them, which would have brought us back to the necessity of a 60-vote majority to overcome the veto. But a 60-vote majority simply to do the business of the Senate, which is to pass laws, is not okay now, when the president is a member of the majority party who has promised to deliver on important immigration reforms.
Certainly some of those reforms can and should be done legitimately by executive order. But we are already seeing what obstreperous state and local officials can do to forestall such orders and, in any case, have we not already seen enough of abusive pen-and-phone "executive actions" to last us a lifetime? In which case, isn't it time for the august upper chamber of Congress to begin doing its job?