We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster.
— Mitch “Filibuster” McConnell, speaking earlier today
The man who staged an unprecedented number of partisan filibusters of executive and judicial nominees during Barack Obama’s presidency today pulled the trigger on the so-called “nuclear option”, marshaling Senate Republicans to vote in favor of a Senate rules change that eliminates the filibuster for Supreme Court nominees.
As a result of the rules change, the threshold for proceeding to a vote on a Supreme Court nominee in the future will be a simple majority of the Senate’s one hundred members, as opposed to three fifths of the Senate (sixty votes).
By refusing to vote to end debate on Neil Gorsuch’s nomination, Democrats have forced Mitch McConnell and the Senate Republicans to weaken the filibuster themselves and restore majority rule to the United States Senate.
Democrats deserve to be commended for refusing to back down. In an impressive show of unity, the core of the caucus backed McConnell into a corner, leaving him with two unpalatable options: gut his precious filibuster to get Gorsuch confirmed, or forget about getting Gorsuch confirmed. McConnell chose the former and was able to whip every member of his caucus to vote the way he wanted, even those members of the caucus squeamish about setting a new precedent.
Obviously, the pending confirmation of Neil Gorsuch is a bad outcome for the country (a very bad outcome), but the silver lining of today’s action by McConnell is that the next time Democrats control the White House and the Senate, Republicans will be unable to filibuster any nominees, including Supreme Court nominees. Their most prized weapon of obstruction will no longer be available to them.
The next step along this path is the evisceration of the filibuster for legislation.
McConnell and the Republicans just demonstrated they’re willing to gut the filibuster to push through Neil Gorsuch. They want their short term wins, and hang the long term consequences. That’s the kind of mindset that could lead to the complete or near-total abolition of the filibuster by 2020.
As we have noted here on the Cascadia Advocate many times, the filibuster is not a component of our plan of government. The United States Constitution does not give the minority party in the Senate a right to filibuster. Rather, the filibuster became a fixture of the United States Senate through custom and tradition.
After Barack Obama became President of the United States, Republicans began abusing the filibuster in an attempt to block anything and everything. This went on for years, until Democrats got so sick of it that they voted to alter the rules of the Senate to exempt executive and lower level judicial nominees from the filibuster.
McConnell threw a huge fit at the time and warned Democratic senators that they would regret their actions. But what’s to regret? Democrats did a great thing by acting to make the United States Senate function more democratically. And now, with the shoe on the other foot, Republicans are doing the same thing.
A key principle of any democratic country is majority rule with minority rights. We require the consent of the minority to change our plan of government, and justifiably so, but our Founders intended for the Congress of the United States to conduct its proceedings by majority vote.
In The Federalist No. 22, Alexander Hamilton writes:
[W]hat at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements.
The filibuster as we know it today did not become a fixture of the United States Senate until after our nation’s Founders had passed on. The word itself didn’t become a part of the country’s political lexicon until several decades later.
“The entire process rests upon the Senate’s pride in itself as the world’s foremost chamber of enlightened debate,” writes William Safire in Safire’s Political Dictionary, launching into a brief history of the talking filibuster.
“Until 1917, speeches could go on and on, and preventing measures from being brought to a vote. Then, in reaction to the little group of willful men who had filibustered to death Woodrow Wilson’s proposal to deter U-Boat attacks by arming merchant vessels, the Senate adopted Rule 22, which provided for cloture (more often used than closure), a two-thirds vote to end debate (amended to three-fifths in 1975). Filibusters are not possible in the House of Representatives, where the rules limit the duration of any individual’s right to speak, or in Great Britain’s House of Commons, where Rule 20 permits the Speaker to direct a member ‘who persists in irrelevance’ to ‘discontinue his speech.'”
In March of 2005, Republicans (who controlled the Senate at the time, as they do now), threatened to “go nuclear” to prevent Democrats from blocking votes on some of George W. Bush’s nominees. But before that happened, a bipartisan “Gang of Fourteen” struck a deal allowing confirmation votes to be held on some nominations in exchange for a pledge to leave the filibuster intact.
The filibuster’s days were numbered after that.
It is worth remembering that many Republicans who served during the Bush years were very much in favor of restoring majority rule to the United States Senate and ending filibusters of presidential nominations.
“This is a matter of the rules of the Senate, which sets its own rules,” former Republican Majority Leader Trent Lott told Safire prior to the publication of the latest edition of his Political Dictionary. “I prefer calling it the ‘constitutional option.’ The other side is acting like we’re going to blow the place up.”
The Senate will survive today’s rules change, just as it survived previous rules changes. The demise of the filibuster for Supreme Court nominations is not the sad aspect of today’s developments. What’s sad is that Republicans were driven to do it by a fervent desire to put a man on the Supreme Court who can be counted upon to weaken the rights and freedoms of working Americans for decades to come.