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What happened with Garland was new in that the Republicans refused to hold any hearing or vote on the matter. They did not violate any laws with their refusal, only norms. I don’t know why no nominations were made before Election Day in 4/10 cases; that may have been another lesser norm, or the vacancies may have been closer to the elections, or both.

In any case, the refusal was a further erosion of any semblance of working towards the good of the country with people of opposing ideologies. The same goes for the increased frequency of government shutdown threats and occurrences.

Really, if those practices had stood for so long on norms, they should have been codified into law already. But the Congress, regardless of party, doesn’t like to cede any power. It’s equally unlikely that if the Democrats take control they’ll do anything about it either. I’m vague on what it would entail—it’s been a while since I read up on it—but another hurdle might be that it would take an amendment rather than a law. Regulating what the Congress does is explicitly harder than making laws for the rest of us.



Congress can't meaningfully restrict its own actions by passing laws: any law passed can be repealed by a future Congress by the same procedure as long as there are majorities.

Which isn't to say that there's no point in purporting to do so: you may hope to require a politically costly public vote (avoidance of which was a significant feature of the Garland no-hearing: with nobody else "on the record," outrage focused solely on the politically-safe McConnell). How effective this is isn't really clear though: voters seem to usually want "their side" to take full, uncompromising advantage when they are on top, and increased polarization means that the fear of alienating independents/moderates isn't as much of an issue, because there aren't any of them left.

Rules and procedures such as the filibuster are weaker still, as they require only a majority of a single house, and no cooperation from the President. We've seen that borne out as the parties out of power became more likely to use the Senate's procedures to stall the party in power, and the fairly quick recent dismantling of those procedures in a bipartisan fashion.

Constitutional amendments can do all sorts of things and their high barriers to passage make them solidly entrenched, but it's very difficult to imagine any issue commanding the necessary supermajorities to pass an amendment on any subject in today's America.

As for Democrats or Republicans in power after the election curbing this kind of partisanship, I wouldn't bet on it. There may be some pushes to try to codify




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