Why Sinema is wrong about the filibuster

Sen. Kyrsten Sinema (D-AZ) thinks “the Senate should reinstate the 60-vote threshold for all judicial and executive branch nominees,” The Hill reported (here) on Monday, September 26, 2022.

She made that remark during a Q&A following a speech at the University of Louisville’s McConnell Center. The irony won’t be lost on fellow Democrats; GOP Senate leader McConnell, for whom the venue is named, has been manipulated judicial nominations, using the filibuster as a primary tool, to skew federal courts far more conservative than the country is.

The Constitution prescribes the powers and duties of Congress, and qualifications of members, but doesn’t specify a simple majority to pass legislation or approve nominations; leaving each chamber to prescribe its own rules. The filibuster came into being accidentally, but has endured in the Senate in various forms since 1806, although it was not used until 1837 (see history here, and note Jefferson’s remarks about super-majorities).

In recent years, the Democrats eliminated the filibuster for lower federal court nominees to break a Republican blockade (details here), and the Republicans then eliminated it for the Supreme Court to confirm Trump’s justices (details here). It’s these Senate rules that Sen. Sinema wants to restore.

Sinema, an Arizona House member, ran for the U.S. Senate in 2018. Facing a contested race in a slightly Republican-leaning state, she positioned herself as a “moderate” and campaigned on health care and economic issues, and won by 55,900 votes (2.35%); see results here.

As a Senator, she’s been reluctant to criticize Trump, and along with West Virginia Democratic Sen. Joe Manchin has resisted easing the filibuster rule further, which has enabled McConnell and Republicans to block much of Biden’s legislative agenda and prevent passage of civil rights, voting rights, and other Democratic high-priority legislation — much to the annoyance of her Democratic colleagues and the party’s supporters across the country, including many in her home state.

Sinema styles herself as a bridge-builder who wants to encourage the parties to work together. For example, at the McConnell Center, she said restoring the filibuster for nominations “would make it harder for us to confirm judges and it would make it harder for us to confirm executive appointments in each administration, but I believe that if we did restore it, we would see more of that middle ground in all parts of our governance.”

She talked about believing the Senate’s job is to “cool the passions” of the House and come up with “big bipartisan solutions” (see story here).  She added, “We shouldn’t get everything we want in the moment because later, upon cooler reflection, you recognize that it has probably gone too far.”

That’s all well and good on paper. But let’s take a closer look. When the premise of an argument is false, the argument fails. Sinema’s premise is that the Senate is a deliberative body in which both sides act in good faith (or at least not in bad faith). Senate Republicans follow McConnell’s lead, so let’s test her assumptions by looking at what McConnell has done to provoke Democratic consideration of scrapping the filibuster altogether.

Example 1: He led his caucus to acquit Trump of impeachable offenses in inciting the Capitol riot, then called him guilty on the Senate floor (watch his speech here), then a few weeks later said he’d support Trump if he runs in 2024 (see story here), and reiterated that again in 2022 (see story here).

Example 2: In 2016, he argued Supreme Court nominees shouldn’t be confirmed in election years, as an excuse to block an Obama’s nominee. Then, in a pure power play, he jammed through a Trump nominee days before the 2020 election.

What this proves is that McConnell and Republicans will play by whatever rules benefit their party, and those rules are flexible and can change on a dime.

Actions like these have earned McConnell a reputation as an unprincipled Machiavellian hypocrite. Nearly all Democrats distrust him, and many believe if his party regained control of Congress and the White House, he wouldn’t hesitate to deprive Democrats of the filibuster. So they’re no longer persuaded by the argument that they should preserve the filibuster because they might need it themselves in the future.

In 2013, when the “nuclear option” (i.e., eliminating the filibuster as to lower federal court nominees) was being discussed, Yahoo News did an analysis that concluded Republicans — despite Democratic complaints — weren’t blockading Obama’s nominations more than other presidents had experienced (see story here). But that was the situation back then, before McConnell’s Supreme Court antics, and when no one foresaw Trump and MAGA, or the 2020 attempted coup.

McConnell’s party is now led by a would-be authoritarian, his party tried to overturn the 2020 election, and it has morphed into an anti-democracy movement with some elements that openly embrace political violence as a means to their ends. With few exceptions, Democrats believe McConnell and the GOP in general are acting in bad faith. That’s why every Democratic senator except for Sinema and Manchin is in favor of modifying the filibuster to protect what they consider essential rights.

I don’t doubt that Sinema’s position is principled, even if some Democrats are suspicious of her motives (for reasons like this). But at best, she’s a Pollyanna who’s deluded herself into believing the normal rules of American politics are still being practiced by both sides, and Republicans are reasonable people who can be negotiated with, when neither of those things is true anymore.

We’ve seen that with Supreme Court nominations, and Republicans’ refusal to discipline Trump’s egregious behavior. How much more do Democrats have to give away, and the American people lose, before she comes to her senses?

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