It now seems all but certain that Senate Republicans will fall short of the 60 votes needed to bring up the nomination of Neil Gorsuch to the Supreme Court. In part because of honest concern about Gorsuch, and in part out of lingering anger that Republicans refused to even consider President Obama’s nomination for that open seat, Senate Democrats are refusing to play along.
Good. Good because the concerns about Gorsuch are real and worthy of expression, and good because the Democrats have every right to be angry and to make that anger felt.
And if that happens — if the threatened Democratic filibuster holds as expected — Senate Majority Leader Mitch McConnell has made it clear that he will respond by invoking the so-called “nuclear option,” calling for a rules vote that would abolish the use of the filibuster in Supreme Court nominations. Republicans would then be able to confirm Gorsuch on a simple majority vote.
Good because the Republicans did win the election, and with it the right to nominate and confirm Supreme Court justices. And good because the filibuster has become a major, almost insurmountable impediment to action that needs to be removed not just in confirmation votes but in legislative votes as well.
That suggestion angers Senate traditionalists for whom the filibuster is a reminder of an earlier era, of a time when the Senate actually did operate more or less as a collegial gentlemen’s club, with positive as well as negative consequences. In those less partisan times, media oversight was less intense and senators could quietly cut deals with the other party without being accused of partisan betrayal. Under those circumstances, in that system, the filibuster was a rarely used tool, employed only in extreme circumstances.
However, those conditions no longer exist, and no amount of nostalgia will bring them back. In these more partisan times, the pressure to filibuster has become too intense for minority parties to withstand, and the filibuster itself has become too easy to wield as a weapon. The modern Senate has in effect become a legislative body where 60 votes are required to do almost anything, and it was not designed to function that way.
Remember, the filibuster has no standing in the Constitution. Quite the contrary, it is a rule that the Senate imposed on itself, and in recent decades in particular it has functioned to frustrate rather than advance constitutional goals and has made Congress increasingly impotent. There’s a reason why, in designing Congress and more particularly the Senate, the Founding Fathers required supermajorities only in five very limited circumstances¹.
James Madison, writing in Federalist Papers #58, explained that reason clearly:
“In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”
Alexander Hamilton, writing in Federalist Papers #75, made the point as well:
“… all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority”
At the moment, of course, that minority happens to be Democratic. Eliminating the filibuster now would empower the ruling Republicans and make it more difficult to block conservative legislative priorities that I personally would find objectionable. But the larger issue is that for the good of the country and the rejuvenation of democracy, we need a functional Congress and we currently don’t have one.
Kill the filibuster.
¹Under the Constitution, two-thirds majorities are required to override a presidential veto, to impeach a president or other official, to expel a duly elected member, to approve a constitutional amendment and in the Senate to ratify a treaty.