The filibuster should have a role, but one more in keeping with its origins
Democrats in the U.S. Senate were right to filibuster President Trump’s Supreme Court nominee, Neil Gorsuch.
Not because Gorsuch is unqualified, but contrary to his protestations and refusal to reveal anything meaningful about his philosophy, being a Supreme Court justice is a political position. If it weren’t, Senate Republicans would not have taken the historically unprecedented step of refusing to even consider Merrick Garland, President Obama’s nominee to replace Justice Antonin Scalia. Both Gorsuch and Garland are well-qualified to be on the Supreme Court. Garland is a moderate, nominated by Obama in the hope of attracting Republican support, while Gorsuch is an originalist, in some ways even more conservative than Scalia. Had Garland been confirmed, it would have given the Supreme Court a majority of justices appointed by Democratic presidents for the first time in more than 40 years.
In response to the Democratic filibuster, Trump could have withdrawn Gorsuch and appointed a less conservative nominee in an attempt to attract Democratic support. Instead, Senate Republicans exercised the “nuclear option,” changing the rules to eliminate the use of the filibuster to prevent appointments to the Supreme Court.
Some strategists argued that the Democrats should not have used the filibuster against Gorsuch and kept it as a tool to prevent even more fervently ideological nominees from getting on the high court. But given the increasingly partisan nature of the Senate, it seems likely that if the filibuster had been retained and used by Democrats against another nominee, the Republicans would have just eliminated the filibuster at that point.
Having the option to filibuster is not a bad idea. It was created to strengthen the Senate’s ability to slow things down, one of the features that made the Senate the “world’s greatest deliberative body.” In order to avoid rushes to judgment, a senator could filibuster a nominee or piece of legislation and prevent the Senate from voting on a bill, presumably giving senators time to investigate and better understand the bill before voting.
But the filibuster evolved into a tool to block Senate action completely. In 1917, a group of isolationist and pacifist senators who wanted the United States to stay out of “the Great War” conducted a filibuster to prevent Congress from arming merchant ships that were being attacked by German U-boats as they made their way to Britain. President Woodrow Wilson complained about the tactic, and said “a little group of willful men, representing no opinion but their own” could make the Senate “the only legislative body in the world which cannot act when its majority is ready for action.” In response, the Senate created Rule 22, which allowed a cloture vote and required two-thirds of senators to agree to end a filibuster.
Originally, in order to filibuster a bill, opponents had to physically man the podium and monopolize the floor, which also prevented any other business from taking place, increasing the pressure on both sides to either pass or withdraw a bill or nominee. In 1975, however, the Senate passed a rule that made “speechifying” no longer necessary, allowing the Senate to conduct other business. It also reduced the number of votes needed to end a filibuster to 60.
When it became easier to filibuster, it was used more frequently. Democrats used it 272 times from 1999 to 2006, when they were the minority party in the Senate, except for a brief period between 2001 and 2003 when they were in the majority. Under President Obama, the Republicans doubled that rate, using a filibuster 644 times from 2007 to 2014, while they were in the minority. This left vacancies in many judicial positions. Of the 149 cloture motions to end the filibuster of a judicial nominee in all of U.S. history, more than half (79) were used to overcome Republican opposition to Obama appointments. To overcome this unprecedented obstructionism, the Democrats used the “nuclear option” in 2013 to eliminate the filibuster for these positions.
The filibuster should have a role, but it should be more in keeping with the idea behind its creation – to slow the process, not stop it completely. The Founding Fathers were very specific about what needed a super majority of votes – amendments to the Constitution, overriding vetoes, expelling members, approval of treaties and impeachment. They never envisioned a minority party with 40 votes being able to paralyze the Senate. But instead of eliminating the filibuster, the Senate should change the number of votes necessary to overcome it.
To stop a filibuster immediately, the current 60-vote threshold is appropriate. But after that, the number of votes necessary to overcome a filibuster should be reduced periodically. Reducing that threshold by one vote every week, for example, would mean that, after 10 weeks, a simple majority could pass a bill. This would slow the business of the Senate, to allow a controversial bill to be fully understood, without allowing a small minority to essentially veto legislation.
Changing the filibuster will hurt Democrats in the short term. But in the long term, it would be good for the country, because it would help the Senate become functional once again.
Kent James is a resident of East Washington.