The irony is thick: A Republican president took office despite getting fewer votes than his opponent, then installed three conservative Supreme Court justices — and now that court majority has ignored America’s majority, not to mention its own precedent, to impose its ideological will on society. The fall of Roe v. Wade is the result of a series of minoritarian quirks in the nation’s political structure and the GOP’s single-minded exploitation of those quirks. With Republicans posed to retake Congress thanks to factors unrelated to actual merit, anti-choice extremism could ultimately be forced upon even those states that still support abortion rights.
There’s nothing Democrats can immediately do about the court’s brazenly politicized majority, the byzantine Electoral College, gerrymandering or the inherent red-state advantage in the Senate. But it could end or alter the filibuster immediately to protect abortion rights across America, now, before the GOP has the chance to eliminate those rights nationally.
The filibuster, of course, is the Senate rule that requires an extraordinary majority of 60 votes (instead of a simple majority of 51) to pass most legislation. A previously reluctant President Joe Biden on Thursday called for making an exception to the filibuster in order to codify abortion rights. That’s the minimum that should happen — though a better approach would be to eliminate the filibuster altogether.
The Constitution’s framers set up the Senate as a majoritarian body and had no notion of this odd rule that lets a minority of the chamber hold everything up. The filibuster arose later, an unintended consequence of Senate rule-making. But it has been around long enough to develop the patina of institutionalism. Filibuster defenders like Sen. Joe Manchin, D-W.Va., wax on about how it promotes bipartisanship.
And how has that been going lately?
Senate Republicans were able to seat the Supreme Court majority currently overruling Americans’ policy preferences with the zeal of zealots because the GOP in 2017 carved out an exception to the filibuster for Supreme Court nominees. Just as Democrats did earlier for other presidential appointments. Now Biden wants an abortion rights exception. When a rule requires escalating exceptions to the rule in order for a lawmaking body to function, perhaps it’s time to rethink the rule.
But if an abortion carve-out is all that’s politically possible, Senate Democrats should do it. Many Republicans are already salivating to eliminate abortion rights nationally when they next hold Congress. Anyone who thinks Senate Minority Leader Mitch McConnell won’t ditch his supposed reverence for the filibuster and scrap it the second it obstructs that goal hasn’t watched his multiple chameleon-like transformations when it comes to power politics.
Manchin and any other Democratic holdouts against scrapping or limiting the filibuster aren’t fostering bipartisanship — they’re just blowing what is probably their final chance in the foreseeable future to protect America’s women while they still can.