Yes, Democrats Will Be In The Minority Some Day, That's Exactly Why Filibuster Reform *Now* Is So Brilliant

It finally happened. They reformed the filibuster in a big way. Now it only takes 51 votes to invoke cloture on an executive branch nominee or a nominee to a lower federal court (i.e., not the Supreme Court). This resembles yesterday's trade of Prince Fielder for Ian Kinsler in that it looks to be just the first move of the coming constitutional crisis, or really what I anticipate will be more like constitutional spring cleaning, sweeping out the various cobwebs that are making our government harder to run than it needs to be under the Constitution. Republicans are, predictably, upset, and they're trotting out some masterfully dumb concern trolling. No, I don't mean the thing where they say Democrats have made it impossible to get anything done, because now--unlike before!--the Republicans are angry. That's not exactly concern trolling, it's more like a kind of an attempt to justify their forthcoming chutzpah. "It's your fault that I'm going to stop anything from getting done!" What I'm talking about is the claim that Democrats will live to regret this because one day they'll be in the minority, and they're not gonna like what Republicans do with the power Democrats have just given the Senate minority. Like this tweet from some Republican spokesperson:

Sen. McConnell spokesman: "I'm looking forward to President Rubio stacking the courts."
— Kasie Hunt (@kasie) November 21, 2013

The thing is, though, this oh-so-charitable attempt by Republicans to show the Democrats that this rule change won't always be to our benefit only serves to highlight the critical importance of acting now. Because, you see, while it is probably true that at some point in the future, possibly multiple decades from now or maybe sooner, Republicans will control both the Senate and the Presidency, that day will look very different from this day in one key respect: there won't be a judicial vacancy crisis anymore. There probably won't be, anyway. You see, there are 93 vacancies on the federal bench right now, including 18 open seats on various Courts of Appeals. Since cloture still seems to give the minority the power to waste a day or so of Senate time, this would take a while, but in principle Obama now gets to appoint 93 new federal judges. That's well over one tenth of the federal bench. That's a huge windfall of potential new liberal judges, that Republicans won't be able to get rid of even if they take over in 2016. And once that windfall gets soaked up by somebody, since there's no judicial filibuster any more we'll probably start seeing vacancies get filled pretty much as they occur. This is, in other words, a one-time windfall. If Democrats take advantage of this opportunity, there's every reason to think Republicans will never get a similar one.

Now, that would be enough incentive if it were plausible that filibuster reform might never happen, that the Senate might just keep humming along letting the minority block nominees it didn't like. But that's not plausible. Over the past decade, Democrats and then especially Republicans realized that it's just plain irrational to keep letting the other side put its people on the bench if you have the power to stop them. But every time the minority commits to a stronger form of obstructionism, they only increase the majority's incentive to remove their ability to obstruct. That makes it inevitable, I think, that these rules will get changed, over a long enough time horizon. It's simply too hard these days for the minority to forgo use of a tool they've been legitimately given. So both parties can know that, if they aren't the ones to break the "In Case of Emergencies" glass box, that means it will be the other side. And that means they both know that not only does taking advantage of the judicial vacancy windfall mean the other side won't get to do so, not taking advantage of it pretty much guarantees that the other side will. Or, to put it another way: support some right-wing Republican is elected in 2016 and the Republicans take the Senate, even by a single vote. Who really thinks they wouldn't enact some kind of filibuster reform their very first day in office at least as drastic as what happened today? Of course they would; they know better than anyone how powerful a weapon the filibuster can be, and there's no way they'd let that weapon fall into Harry Reid's hands if they saw a chance to reshape the federal courts for a generation. So making this rules change now is in fact the only way to stop President Rubio from stacking the courts.

Except, y'know, winning Presidential elections for the foreseeable future. But we're working on that, too.