A High Court Compromise That Could Save The Senate As We Know It

There is a path forward — if the parties have the will to seek it

Years of partisan escalation have brought us to this: Democrats are poised to filibuster Gorsuch in retaliation for the blockade of Garland, and Republicans are poised to abolish the filibuster in response.

As big an issue as the Court seat is, changing the role of the Senate in this way may be even bigger. Killing the filibuster would fundamentally change the checks and balances of the American system. Of course, there is certainly room for reasonable minds to disagree on whether that would be good or bad; most democracies have fewer checks and balances than we do, and suffer less gridlock as a result. However, if we made that choice, it should be as a conscious decision that the efficiency benefits would outweigh the loss of protections against abuse of power. Few would favor this kind of radical change as a consequence of partisan rancor breaking all bounds, as is happening now. (This should especially concern conservatives, who stand as the political wing ordinarily most focused on the dangers of abusive government. In today’s result-oriented Washington, though, that vigilance seems to have vanished with conservatives on top — though no doubt to re-emerge when liberals are the ones in charge).

There is a way to step back from the brink and remove the flash-point that is about to upend the Senate:

- Put both Gorsuch AND Garland on the Court now, while keeping a Republican edge in the Court’s overall balance of power.

Since Congress sets the number of justices, one way to see this done would be a bill to temporarily increase the number of justices to 10, with the President nominating both Gorsuch and Garland to fill the current voids. The bill could further provide that the next vacancy will not be filled, so that the number will return to nine — and that on the vacancy after that, no cloture vote will be required to confirm the nominee.

The point of this compromise would be to do a partial reset to where things would be if not for the battling over Garland and Gorsuch. It doesn’t give the Democrats the 5–4 edge they would have had absent the Garland blockade. But it does keep them in the game. It also doesn’t give the Republicans the dominance of the Court they would have had if the Garland blockade stood and the Gorsuch blockade did not. But it does give them an edge they would not otherwise have had, and removes the risk of Democrats retaliating against their next nominee as well. The Court could thus continue its work, strengthened by two judges with impeccable credentials. Maybe even more importantly, a compromise along these lines would be a chance for everyone to step back from the partisan warfare that’s steadily corroded our institutions and public faith in them. For any Congressmembers tired of polling somewhere below plague rats in popularity, that chance should not be discarded casually — to say nothing of the chance to substantively resolve a major issue and show that responsible government is possible.

Getting the parties on board with such an approach certainly has challenges, but there are appealing points for both sides. For Democrats, this is the best they’re going to get. They’ve lost all power at the federal level, they can’t stop the Republicans from going nuclear, and the only solace they’d have otherwise would be the grim certainty that someday the tables will turn. For Republicans (who are being asked a lot more since they have the power to force the issue), the deal would give them most of what they want without having to sacrifice the institution of the Senate as it now stands. They would solidify their advantage on the Court in the near term, without paying the political price they could face by abolishing the filibuster. They would also be able to leave in place the protections they themselves will need down the road when they are next out of power — and put tremendous political pressure on the Democrats to do the same when the shoe is on the other foot.

There will be immense pressure from both sides to avoid any such deal. For many on the right, and increasing numbers on the left too, compromise is per se bad, especially for those whose side is winning at the moment. The temptation to grind an advantage while it lasts is huge for whichever side dominates at any given time. But a no-compromises approach is neither popular with anyone outside the base nor a viable long term strategy in any case. In a battle of elections, one cannot annihilate the opposition; barring secession or civil war, the other half of the country will still be there next election and will have payback sooner or later. Moreover, no party stays on top forever; the last decade shows reversal after reversal, and popular dissatisfaction with whoever gets associated with the status quo suggests that volatility will only increase. That being so, a no-compromise approach just means that whatever the party in charge does will eventually be reversed when the shoe is on the other foot. So unless anyone finds it beneficial for American politics to devolve permanently into a continuing cycle of undoing whatever the other side did whenever the balance of power changes, we have to find a middle ground. This compromise could do so on the Court, and maybe set the stage for more common ground going forward.

Will anyone consider it? In the toxic environment we have, maybe not. But it does offer a path out of this mess — if the parties view the institutional role of the Senate and its protections for the loyal opposition as worth saving.