Reid paved the way for Gorsuch

There are many people to thank for the coming accession of Neil Gorsuch to the Supreme Court.

Donald Trump for winning the election. Hillary Clinton for losing it. Senate Majority Leader Mitch McConnell, R-Ky., for holding open the high court seat through 2016, resolute and immovable against furious (and hypocritical) opposition from Democrats and media. And, of course, former Sen. Harry Reid, D-Nev.

God bless Harry Reid.

It’s because of him that Gorsuch is guaranteed elevation to the court. In 2013, as then-Senate majority leader, Reid blew up the joint. He abolished the filibuster for federal appointments both executive (such as Cabinet) and judicial, for all district and circuit court judgeships (excluding only the Supreme Court). Thus unencumbered, the Democratic-controlled Senate packed the lower courts with Obama nominees.

Reid was warned that the day would come when Republicans would be in the majority and would exploit the new rules to equal and opposite effect. That day is here.

The result is striking. Trump’s Cabinet appointments are essentially unstoppable because Republicans need only 51 votes and they have 52. They have no need to reach 60, the number required to overcome a filibuster. Democrats are powerless to stop anyone on their own.

And equally powerless to stop Gorsuch. But isn’t the filibuster for Supreme Court nominees still standing? Yes, but if the Democrats dare try it, everyone knows that McConnell will do exactly what Reid did and invoke the nuclear option – filibuster abolition – for the Supreme Court, too.

Reid never fully appreciated the magnitude of his crime against the Senate. As I wrote at the time, the offense was not abolishing the filibuster – you can argue that issue either way – but that he did it by simple majority.

In a serious body, a serious rule change requires a serious supermajority. (Amending the U.S. Constitution, for example, requires two-thirds of both houses plus three-quarters of all the states.) Otherwise you have rendered the place lawless. If in any given session you can summon up the day’s majority to change the institution’s fundamental rules, there are no rules.

As I argued in 2015, eventually the two parties will need to work out a permanent arrangement under which major rule changes will require a supermajority (say, of two-thirds) to ensure substantial bipartisan support.

The operative word, however, is “eventually.” Such an agreement is for the future. Not yet, not today.

Republicans are no fools. They are not about to forfeit the advantage bequeathed to them by Reid’s shortsighted willfulness. They will zealously retain the nuclear option for Supreme Court nominees through the current Republican tenure of Congress and the presidency.

After which, they should be ready to parlay and press the reset button. But only then.

This story was originally published February 3, 2017 at 5:59 PM with the headline "Reid paved the way for Gorsuch."