Speaking at a news conference at the end of the NATO summit in Madrid on Thursday, Joe Biden said that he supports an exception to the filibuster rules “to codify Roe v. Wade in the law.” This is a bad idea for numerous reasons.
And I’m not just saying that because I’m pro-life or because I have long supported the filibuster (while being open to lowering the number of votes required for cloture). But even putting aside my admitted biases, this exception would be ill-advised for all concerned.
Joe Biden was elected to restore norms and institutions. His filibuster comments confirm that he has misread his moderate mandate. Of course, his immediate need is to excite the base and drive midterm turnout, which may explain his comments. If so, it’s a short-term strategy that will not age well.
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“You’ll regret this, and you may regret this a lot sooner than you think.” In case you’ve forgotten, that was Mitch McConnell in 2013 warning then-Sen. Majority Leader Harry Reid what would happen if Democrats went “nuclear,” allowing them to filibuster executive branch appointments and most judicial nominations.
Reid didn’t listen, and four short years later, Republicans were back in the driver’s seat. Having normalized killing the filibuster for most judicial appointments, McConnell had the necessary groundwork in place to justify pulling the trigger for Supreme Court nominations.
Still, throughout the Trump administration, McConnell held firm against Trump’s calls to nuke the legislative filibuster. Trump called him a “knucklehead” for refusing to do so, but McConnell never knuckled under. Of course, if Democrats go first—as Biden is now warning—McConnell (or some future Republican) will have every right to junk the filibuster in the future.
People who do not worry about Senate tradition or the dangers of majoritarianism might not mind this. But consider two likely outcomes.
First, you could have a scenario where decisions concerning how our country fundamentally operates would oscillate based on pendulum swings and political whims. This back-and-forth would be chaotic and destabilizing.
Second, because the population dispersal generally favors Republicans, they will regain the Senate (maybe as soon as this November) and the presidency (maybe as soon as 2024); eventually, Democrats may loathe not having the filibuster to stop them. (Of course, it’s possible that Democrats, having nuked the filibuster, will escalate things further by granting Washington, D.C., statehood, packing the Supreme Court, and performing other power-grabbing moves to protect their majority indefinitely.)
Once that happens, the gloves come off. Anyone who cares about preserving liberal democracy should be aware of how precious (and tenuous) it is. As such, it might help to imagine how a conservative would perceive this development (changing the rules, just as we have finally obtained a victory).
Please indulge me as I attempt to explain this part of the story.
For years now, the illiberal right has underestimated the accomplishments of the conservative movement and criticized conservatives by asking, “What have you conserved?” Overturning Roe put to bed the notion that Conservatism Inc. can’t get things done. (Yes, it’s true that three of the justices were nominated by Donald Trump, but the justices were mainstream conservatives groomed by mainstream institutions like The Federalist Society. What is more, Mitch McConnell is probably the politician who deserves the lion’s share of the credit.)
A huge fight on the right (see David French vs. Sohrab Ahmari) concerns this fundamental question: Can conservatives win the culture wars by working through the rules of liberal democracy? The David Frenches of the world say we can and must. The Sohrab Ahmaris of the world see this as a failed experiment. They want to use political power to impose the common good.
Now, imagine the message it will send if, after working through the proper channels for fifty years—watching qualified judges get “borked” and building a legal conservative infrastructure to identify, train, and confirm nominees—conservatives finally achieve their goal of overturning Roe, only to see it reversed by some rules change.
Many conservatives will conclude that working through the system to achieve conservative ends—admittedly by playing hardball politics (see Mitch McConnell’s blockade of Merrick Garland)—was a waste of time. If Joe Biden wants to further radicalize the right and undermine the mainstream “Never Trump” conservative argument, this would be the way to do it.
Now, the good news (for most of us) is that Biden’s words are unlikely to become reality. I’m not sure Biden could get Democratic Senators Joe Manchin or Krysten Sinema to go along with his plan, even to temporarily nuke the filibuster.
Still, consider what Biden just did to Manchin, Sinema, and the Democratic Party. Both Manchin and Sinema have been under attack from the activist left, and now Biden just made it more likely that, unless they capitulate, they will be blamed for Democrats failing to codify Roe.
This also takes the issue of abortion, which in the wake of Roe’s reversal was a galvanizing issue on the left, and creates division and in-fighting inside the Democratic Party.
It’s a dangerous idea, and Joe Biden should never have floated it. In the words of Mitch McConnell, “You’ll regret this, and you may regret this a lot sooner than you think.”
