Last week’s overturning of Roe v. Wade (1973) by the U.S. Supreme Court was made possible, at least in some small ways, by what then-Senate Majority Leader Harry Reid (D–Nev.) did in November 2013.
Seeking a short-term political win, Reid followed through on what both Democrats and Republicans had taken turns threatening to do for the better part of the past decade: abolishing the filibuster for judicial nominees. And the move did indeed pay some short-term dividends, as Democrats were able to use their Senate majority to push through a bunch of circuit court judicial nominations that had been stalled by GOP filibuster threats.
Over the longer term, however, that maneuver turned into a clear win for Republicans. They took back control of the Senate in 2014, took the presidency in 2016 (in no small part because many conservatives held their nose to vote for Donald Trump in the hopes that he would appoint good judges), then expanded the filibuster-exemption to include the Supreme Court justices, and appointed most of the five-justice majority that ended the federal control over abortion policy.
Having apparently learned nothing from this experience, prominent Democrats including President Joe Biden are once again endorsing changes to the filibuster—changes which, if approved, would probably open the door to a future Republican-controlled Congress banning abortion nationwide.
Asked Thursday about the potential to scrap the filibuster in order to pass a law through Congress protecting access to abortions, President Joe Biden said he’d back that kind of effort. “I believe we have to codify Roe v. Wade in the law, and the way to do that is to make sure the Congress votes to do that,” Biden said during a press conference in Madrid, Spain, where he is attending a NATO summit. “And if the filibuster gets in the way, it’s like voting rights; it should be—we provide an exception for this.”
As the president admits, this is not the first time he’s voiced support for carving away at the filibuster. After years (many, many years) of championing the Senate’s 60-vote threshold as an important aspect of its proper functioning, Biden called in January for the Senate to scrap the filibuster in a narrow way to allow Democrats to overhaul federal election procedures.
But the problem with changing the rules for the elections bill or an abortion bill is the same as the one for abolishing the filibuster for judicial nominees: There’s no way to actually do this in a narrow sense. One side doesn’t get to break the norms by claiming it’s “only just this once” or only for a special reason. Once the filibuster for judicial nominations was scrapped, there was no doubt that it would soon be abolished for Supreme Court nominations too. The same will happen if Democrats kill the legislative filibuster—no matter how good of a reason they might think they had.
Once it’s gone, it’s gone. And the Senate is (whether fairly or not) tilted in favor of Republicans. It would be beyond foolish for Democrats to willingly walk into this same trap twice in the span of a decade.
Yet, that is exactly what some Democrats are doing. During an appearance this week on The Late Show with Stephen Colbert, Rep. Alexandria Ocasio-Cortez (D–N.Y.) said Biden should “entertain” adding more justices to the court and should “forcefully come out in ending the filibuster in the United States Senate,” which could give Congress a chance to codify abortion rights, same-sex marriage, and other issues. (She also somewhat bizarrely claimed that the court had been taken over by “the Confederate south” in the era before the Emancipation Proclamation, which would be a shocking development indeed).
Luckily, for Democrats, the legislative filibuster is likely to survive the post-Roe madness for the same reason it survived the earlier effort to pass the elections bill: Enough Senate Democrats recognize what a mistake it would be.
“Eliminating the 60-vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy from threats in the years to come,” Sen. Kyrsten Sinema (D–Ariz.) warned in a speech on the Senate floor in January, effectively ending the Democratic plot to take down the filibuster at the time.
She might as well have been talking about abortion rights—if Democrats want to protect a woman’s right to choose, they’ll likely need to use the filibuster in the near future. Indeed, Republicans are already planning on as much.
“Don’t worry about a national abortion ban. Why? ‘Because of the filibuster,'” an unnamed Senate leadership aide told Puck reporter Julia Ioffe this week, adding that “a lot of Senate Democrats are about to rediscover their love of the filibuster.”
But only if it is still there when they need it.