Minority Whip Dick Durbin (D-IL) will have served 30 years when he retires from the Senate this January, taking with him three decades of institutional knowledge and at least a little accumulated wisdom. The next generation of Senate Democrats should heed his valedictory warnings as he retires, but they probably will not, especially if the White House is in Democratic hands in 2029. If they do what they now seem hell-bent on doing, the nation will be worse off for it.
“He was warned ahead of time there would be retribution,” Durbin said of the late Sen. Harry Reid (D-NV), who was majority leader when he decided in 2013 to end filibusters of judicial nominations. “We’re still suffering from that,” Durbin added.
When Democrats used the “nuclear option” to change Senate rules so judicial nominees could be confirmed by a simple majority vote, they said they were breaking precedent just for non-Supreme Court judicial nominations. But that is not how Senate rule changes work.
They can be changed by unanimous consent (requiring all senators present), by legislation (60 votes), by a formal change to Senate standing rules (67 votes), or by establishing a new Senate precedent by overruling the chair’s ruling, which requires only 50 votes. The first three methods allow specific wording for rule changes that can limit what is being changed. The last method does not. When Reid set the precedent for confirming presidential appointments with just 50 votes, that precedent was set for all appointments, including Supreme Court and Cabinet nominations.
Reid was warned at the time, as Durbin says, but he ignored the warnings. Obama was president, and Reid perhaps felt that Democrats would have the White House forever. Why not maximize the Democratic Party’s power?
Democrats lost the presidency sooner than expected, and Senate Majority Leader Mitch McConnell quickly used Reid’s precedent to confirm Rex Tillerson as secretary of state by a mere majority vote and then, later, to confirm Supreme Court nominees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
One might hope Democrats learned their lesson from Reid’s arrogance, but that seems not to be the case. Prominent party leaders, including Kamala Harris, Pete Buttigieg, and Rep. Alexandria Ocasio-Cortez (D-NY), endorse plans not only to get rid of the Senate’s legislative filibuster. but also to pack the Supreme Court with obedient leftists who will be no check on Democrats exceeding their constitutional powers or adding the District of Columbia and Puerto Rico as the 51st and 52nd states.
Ending the legislative filibuster would allow narrow, temporary majorities to impose sweeping changes on the country without a single vote from the opposition. Policies governing healthcare, energy, and taxes would swing dramatically back and forth as one party superseded the other. Everyone, individuals and businesses alike, would face uncertainty, and elections would become increasingly desperate struggles to control a government with fewer restraints. The filibuster encourages negotiation and limits the damage either party can inflict when its activists demand everything at once.
Packing the Supreme Court would accelerate that destructive cycle. Democrats propose adding just enough justices to manufacture a liberal majority. Republicans would have every incentive to expand the court to a conservative majority when they returned to power. Nothing would settle the court’s size because nothing would settle either party’s appetite for favorable rulings. Constitutional precedent would become contingent on the latest election — the Constitution would, in other words, cease to be a constitution at all — and the judiciary would lose its ability to serve as an independent check on Congress and the president.
Granting statehood to Puerto Rico and the District of Columbia would be just as disruptive to democratic norms. It would trigger a chaotic arms race in which the two parties would push to subdivide friendly states or add new ones simply to manufacture more votes in the Senate.
Durbin’s experience should teach his successors that political coalitions change, power passes back and forth between parties, and institutional restraints protect everyone. Democrats believe dismantling restraints will secure their advantage, but as Durbin acknowledges, they have made that mistake before.