Make no mistake, there is no turning back now. The way the government makes laws is about to change forever.
On Friday, the Senate voted 54-45 to confirm Neil Gorsuch to fill the Supreme Court vacancy left by Justice Antonin Scalia's death in February 2016. The day before, Senate Majority Leader Mitch McConnell (R-Ky.) invoked the "nuclear option" to eliminate the filibuster and allow the confirmation vote by simple majority.
The filibuster is a procedural tool used to prevent proposed legislation from receiving a vote by refusing to end debate on the bill. The Senate can force the end of debate — and, therefore, hold a vote — with 60 Senate backers.
Generally employed by the minority party, the filibuster has helped to slow or prevent legislation from making its way through the Senate, both for better and for worse. By deploying the nuclear option to confirm a Supreme Court justice, McConnell and Senate Republicans have crossed the procedural Rubicon.
Unilaterally gutting the ability of the minority party to force presidents to nominate more moderate judges to the nation's highest court marks the beginning of the end of the last remaining filibuster — the legislative filibuster.
The question is not if Republicans will eliminate Democrats' ability to delay or block deeply unpopular legislation, but when.
Dissent or obstruction?
The filibuster itself is an anachronism of Senate procedure. First created accidentally in 1806 through the removal of a rarely used rule to end debate, the filibuster has evolved through multiple reforms into a tool wielded by individual senators to stall and potentially prevent legislation and nominations from receiving a full vote.
While originally used in extreme cases to force proponents of legislation to make their case publicly to gain supermajority support, the filibuster has undeniably transformed into a tool of wholesale obstruction. Only 20 motions to end filibusters were filed between 1950 and 1969 — but between 2013 and 2014, the Senate filed a record-breaking 253 attempts to end filibusters.
Famous filibusters have been used for everything from opposing budget amendments to protesting the Civil Rights Act. Sen. Rand Paul (R-Ky.) attempted to filibuster CIA Director John Brennan's nomination in 2013, using it as an opportunity to denounce the Obama administration's policy on drone strikes. Sen. Bernie Sanders (I-Vt.) stood for more than 8 hours to speak against proposed tax cuts with rhetoric that would preview his 2016 presidential campaign stump speech.
In late 2013, that all changed. Then-Senate Majority Leader Harry Reid eliminated the ability to filibuster non-Supreme Court appointments in an attempt to break the obstructionist logjam. Republicans, who unanimously opposed the move, warned it was the first step toward eliminating the filibuster altogether.
"Democrats won't be in power in perpetuity," Republican Alabama Sen. Richard Shelby told the Washington Post in 2013. "This is a mistake — a big one for the long run. Maybe not for the short run. Short-term gains, but I think it changes the senate tremendously in a bad way."
The inevitable next step
The last remaining procedural difference between the House and Senate is now the legislative filibuster — the ability to force 60-vote majorities on contentious legislation through minority opposition. Unsurprisingly, the corpse of the Supreme Court filibuster wasn't even cold before Republicans began implying the legislative filibuster was living on borrowed time.
Proud obstructionist Sen. Ted Cruz (R-Texas) — who filibustered in 2013 because he couldn't secure enough votes to repeal the Affordable Care Act — has already hinted the legislative filibuster is next. Cruz told reporters Thursday that if Democrats didn't stop their "unreasonable across-the-board obstruction," Republicans may move to remove the filibuster altogether, imposing simple-majority rule in the Senate.
Cruz, of course, held the opposite position in 2015, when he denounced proposals to eliminate the legislative filibuster as unwise because it helped prevent "bad liberal, radical ideas" from becoming law.
While McConnell said Tuesday he has no intention of eliminating the legislative filibuster, it's hardly a commitment you can take to the bank: In January, he "all but ruled out" changing the filibuster to confirm Trump's Supreme Court nominees.
That so many Republicans sided with McConnell's move, regardless of whether they had previously supported the nuclear option, bodes ill for the legislative filibuster. Sen. Bob Corker (R-Tenn.) told Politico he felt the legislative filibuster was now under consideration, due to the lack of public outrage over the Supreme Court filibuster's elimination.
The argument for getting rid of supermajority requirements on legislation is a natural next step. If Republicans won't let Democrats prevent the lifetime appointment of a partisan judicial nominee, then why should constituents allow them to permit Democrats the ability to slow down or block Trump's legislative agenda?
Subverting popular opinion
The Senate is, by definition, not representative. The 52-seat Republican majority only represents 44% of the actual U.S. population, whereas the group of senators opposing the Gorsuch nomination represented more than half the country. In short, the Republicans' elimination of the Supreme Court filibuster allowed a president who lost the popular vote to appoint a justice with the approval of senators who represent less than half of the American people.
You can see where this is going.
Some have argued the spirit of bipartisanship or the fear of reprisal, when the majority inevitably changes, will keep Republicans from eliminating the last vestige of minority protection. There is no reason to believe these arguments.
Republicans will be emboldened by their ability to unilaterally change the rules and push through the most consequential type of presidential nominee. There is no reason to assume they won't take the same steps to push through ideologically driven legislation, even if it is deeply unpopular — ACA repeal, anyone? — to secure a "win" for themselves and, more specifically, the White House.
Republicans have proven they will push the nuclear button if they feel the outcome is worth burning procedural bridges to achieve. When they suggest they'll consider eliminating the legislative filibuster to push their agenda, it's best to take them at their word.