Still Hoping to Save the Filibuster

Yes, this is most certainly futile: Republicans aren't going to do it, and most people who care don't want it to happen anyway. But I'd like to see the filibuster saved and I think it's not only possible but actually in the interest of all Senators, so I'll push on with it.

Basically, as I argued a while ago, I think that the filibuster (and the good things about the Senate) has a better chance of surviving long-term if the current post-nuclear situation is replaced by a negotiated settlement on nominations. The key is to get both sides to agree to something which would be better for the minority party than the post-nuclear status quo, but better for the majority party than where things were before Harry Reid acted.

In particular, I think simple majority cloture on judges is suboptimal. As long as we're talking lifetime appointments, I have no real problem with imposing some sort of supermajority requirement. When I've written about this in the past, I've always said that I had no particular attachment to 60, but I've never really had any particular notion of why any particular number should be set as the standard. So, futile as it is, I'm going to return to it with a new argument: the number required for cloture should be pegged to the size of the Senate majority party.

Or, actually, because as long as they're (hypothetically) revisiting the rule, they should set it to the size of the Senate minority.

The most obvious option for the number needed to sustain a filibuster would be equal to the size of the minority party. So, with 45 Republicans right now, continuing a filibuster would require 45 "yea" votes. What does that do? It means that if the opposition party is unified in rejecting a judicial nominee, then Senators from the president's party may have a tough vote. If the nominee is relatively popular, no problem. If not, then, well, that's as good a sign as any that the nominee is in some way unfit or out of the mainstream.

After all, normally we could assume that any party which wins the White House and also wins the Senate -- the conditions under which any of this matters -- will be able to produce judicial nominees who are at least avoid being dramatically unpopular. In fact, all else equal, there's no reason to expect that they'll be unpopular at all. But given the loose connection between opinion on public policy and elections, it's certainly possible, especially if the president actively attempts to fill the bench with ideologues.

Some other variations: one could set it at minority plus two. With a 45 member Republican conference, they would need 47 votes to sustain a filibuster. That makes cloture quite a bit easier; only a truly unpopular nominee would likely lose. Or set it at minority minus two. That way, the majority would have to win at least two minority party votes for cloture (assuming everyone was present and the majority party was united). As we've seen, however, that option may be good for the minority party as a whole, but can force tough choices for Senators who don't want to obstruct but also don't want to be seen as squishes.

In other words, in some ways keeping the number exactly equal to the size of the minority party takes the pressure off them, and puts the pressure on marginal Senators from the majority party. In exchange, of course, at least as opposed to 60, the majority party would normally be able to confirm.

Whatever the exact number, presumably it would be capped at 60 (so a 65 Senators majority party would be able to easily get cloture). I suppose it would have to be drafted carefully to prevent gaming the system (the minority party couldn't change the number by having a half-dozen Senators declare themselves Independents); that seems doable.

Yes, some majorities would find it a lot easier to stick together than others. If the president's party has a couple of Senators who normally vote with the out-party on judicial issues, it's going to be harder to get cloture. But that was true under the old rules, too. Remember, it's been rare even in the last two Congresses for Republicans to unanimously oppose cloture on judicial nominees; that may change some with only a simple majority needed for cloture and could change under any set of rules, but if things break down the majority still could threatened a new round of majority-imposed reform.

Again: I don't expect to see this happen, mainly because I don't think Republicans are willing to compromise; I think they would rather get rolled than cut a deal. Democrats might not take it either. But I still think it's a deal that works for both sides, and for the Senate.