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The lesson of Gorsuch and the nuclear option: "Neither party has any incentive to compromise"

“Consensual politics across partisan lines is in a death spiral.”

Neil Gorsuch The Washington Post / Ricky Carioti via Getty Images

"It is depressing; I'm very depressed,” Republican Sen. John McCain said this week.

“We're going down the wrong path here,” Democratic Sen. Joe Manchin said.

They were both talking about the same thing: the GOP’s potential use of the so-called “nuclear option” to confirm Judge Neil Gorsuch to the Supreme Court.

Senate Republicans will move to a vote Thursday on Gorsuch’s nomination. Senate Democrats are expected to filibuster to block that vote. And in response, the Republicans will likely change the rules of the Senate to eliminate the filibuster for Supreme Court nominations, so all Gorsuch needs is a simple majority of votes to be confirmed.

Senators from both parties are unhappy with this unusual rule change, but it’s almost certainly going to happen anyway.

I wanted to know if Republicans’ use of the nuclear option represents a high-water mark for partisanship in American history. I also wanted to know what it would mean for the minority party in the Senate moving forward, why the nomination process has become so contentious, and what, if anything, can be done about the partisan gridlock.

So I reached out to Brian Balogh, co-host of the BackStory With the American History Guys podcast and a professor of history at the University of Virginia. Balogh’s research focuses on the evolution of American political parties and movements.

I also reached out to Sarah Binder, a professor of political science at George Washington University. Binder is the author of Stalemate: Causes and Consequences of Legislative Gridlock, which examines 50 years of legislative history and shows how divided government can either force compromise or stunt efforts to enact new laws.

Here’s what they told me.

The Republican use of the nuclear option would be extreme, but not unprecedented in American history

Brian Balogh: Both in terms of the use of the filibuster and changes in terms of rules to cut off the filibuster, this is not unprecedented but exceptional, and I would say the same for the degree of partisan rancor that exists today. I would say this is the highest degree of partisanship in the history of the post–World War II era. But it is not unprecedented across the longer span of American history.

It’s also the natural consequence of a decades-long polarization process in Congress

Sarah Binder: I really see this particular nuclear move as part and parcel of this long-term parliamentary arms race between the two parties, and it seems momentous because we don't get changes to the cloture rule very often, and because this is a lifetime appointment. So there are really long-term policy consequences for reducing or limiting the chances of a filibuster on this and future nominees.

But it's not as earth-shattering a change as some people want to make it out to be. We've seen movement toward majority rule in other elements of the Senate, and so in that sense it's the natural response to previous episodes where the minority has exploited the rules and the majority has fought back and the temperature gets increasingly raised.

The gradual ratcheting up of partisanship has been underway since the 1980s in the Senate, and this is surely part of the natural outgrowth of that rising partisan tension. But I wouldn't call it the high-water mark. The high-water mark would be blowing a hole in the legislative filibuster for everything.

It will make bipartisan cooperation in the future even harder

Brian Balogh: Neither party has any incentive to compromise on anything. There is no reason to think, after this move, that either party will respect this tradition of securing a supermajority before approving legislation. Obviously, where the Constitution requires a supermajority, those will continue, but outside of that, I doubt it. The cloture rules [which allow the Senate to cut off debate on a topic] are not mandated in the Constitution.

So what this means is that we can expect a more scorched-earth policy, and the big takeaway there is that we're removing the institutional incentives to compromise or to move towards a more consensual position across party lines, at the very moment that parties are more divided along partisan lines than they ever have been in the 20th century. I think consensual politics across partisan lines is in a death spiral.

Sarah Binder: Looking at past episodes, minorities don't get pushback from the majority and then lay down and call it quits. They look for new avenues to pursue their agendas in ways that take advantage of remaining rules and norms. Now, this will certainly kick up the temperature on the Democratic side, which was already high with the election of Trump. But this will raise it further and encourage them to find other ways to pursue their agenda, and to find other ways of preventing Republicans from pursuing theirs.

There are two solutions to the partisanship problem: either the voters stop rewarding extremism or lawmakers discover mutually beneficial compromises

Brian Balogh: The American public will have to decide that they care more about effective governance than their party allegiances. So long as the voters reward extreme partisanship, things will get worse, not better.

Sarah Binder: One thing to keep in mind is that we do get legislative deals in polarized times. We've been polarized for 10 or 20 years, and yet things do get done. It's always easier to point to the things that don't get done. But lawmakers, if they have any fortitude at all, can close the doors and find an issue on which both parties can win. Policymaking, counter to the "art of the deal," is not just about dividing up the pie. Real legislative gains are made by enlarging the pie, giving each party its preferred outcome.

Think of the Senate immigration deal in 2013 — Democrats got the path to citizenship and Republicans got enormous amounts of money for border security, and they both had to give a little in order to achieve a mutually positive outcome. Perhaps Republicans will realize, come election time, that very little has gotten done, and maybe that will instill some incentive to come to the table. To be honest, I don't think that's likely, but it's possible.

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