After years of timidity, the Senate suddenly used the ‘nuclear option’ and amended its rules to kill the filibuster for all nominations other than Supreme Court Justices.
The Republicans — whose pledge to block any appointee to the D.C. Circuit no matter how qualified is what brought on this sudden shift — promised retaliation when they were next in the majority.
The Minority Leader Sen. Chuck Grassley promised they’d abolish the filibuster for Justices too.
Meanwhile Sen. Carl Levin, one of the three Democrats to vote to keep the filibuster as it was, warned that the principle set in this vote could just as easily be applied to legislation as to nominations, so that this meant the end of the Senate as we know it.
From a strict matter of procedural nicety, I would have preferred a vote to amend the Senate rules be taken at the first meeting of the Senate in a session, rather than mid-session. Even though the Senate sees itself as a continuing body, there seems to me to be no serious argument that the rules cannot be changed by majority vote at the start of the two-year session. There is and was a credible argument that once the rules were in place, a change to the filibuster rule could be filibustered; as I understand it the Senate voted to overrule the Chair on that point, which is an option under its rules of procedure. And that was that.
One thing I definitely believe: Art. I, sec. 5 of the Constitution states that “Each House may determine the Rules of its Proceeding”; I do not think that this decision, whatever one thinks of it, is or should be reviewable in court. I imagine there will be a challenge, say by some party unhappy with a ruling by a judge confirmed under the new rules, but I confidently predict that it will lose.
Is the death of the filibuster good for us? In the short term, given how it was being routinely abused, yes. In the long term, it is harder to say. On the plus side, it makes the Senate a little less undemocratic; with the filibuster a rump of 41 senators representing under a third1 of the population. On what may well be the minus side, it also makes a President with a majority in the Senate significantly more powerful; and it makes a President with even a bare majority in both houses very much more powerful, maybe too powerful. That is emphatically not the situation today, but things change.
Update: It seems I’m consistent: Back in 2005 I chose not to sign a lawprof’s letter opposing the ‘nuclear option’. That time it was Republicans threatening to use the ‘nuclear option’ against Democrats.
- Update2: It seems I forgot just how bad it is. According to Dylan Matthews,
If senators representing 17.82 percent of the population agree, they can get a majority in the 2013 U.S. Senate. That’s not the lowest that figure has gotten (it hit about 16.8 percent in 1970) but it’s about there. And this doesn’t even take the filibuster into account. The smallest 20 states amount to 11.27 percent of the U.S. population, but if all of their senators band together they can successfully filibuster legislation. of the population could block nominations.
The fundamental problem in the Senate is that it is now viewed as an equivalent body to the House. It is not, and was never intended to be. The Senate was not to be fully Democratic in nature, and was not to be popularly elected. It was intended to be the States’ final check upon the Federal Government. As such it was INTENDED from the start to be a body where things could be locked up – at a time when it was the States that were doing all the daily work anyway. It was NOT intended to be the varsity version of the House.
Now we (wrongly, I think) view the States as little better than municipal Governments, and the Senate as a group of the People’s representatives with longer terms. I think a lot of how we view how things work in D.C. would change if we STOPPED looking at the Senate as a mirror of the House. For how the Senate operates now, it really serves no practical purpose, but is simply a Constitutionally defined body. If our Government was intended to function as it has been altered to do so, there likely would have been no bicameralism in the way that we have it now.
What the Senate did was, in the end, somewhat educational for those who don’t really think about how their Government actually works (as it would also have been if the Republicans had done it). It effectively hammers home the very real point that there really ARE no rules in the Senate, since whichever party has the most votes can just change them at will. Don’t like the filibuster rule as it NOW is – don’t worry, the Republicans will just change it in some OTHER was when THEY have a majority – then the Dems again after that. These aren’t rules at all, they are just power grabs. A “rule” is something that’s binding on everyone, not just the minority.
I agree that the Congress should make it’s own rules (clearly that’s the Constitutional sentiment), however, they should be such that they cannot be EVER changed by a simple majority. The Senate rules should ALWAYS be the result of an agreement by the significant majority of the States (now, the Senators themselves). Whether that means 60, or some higher number (as I think), it the only question.
The Senate was (and should be again) forced to work as a cooperative body, beholden to the States’ interests and unable to easily alter itself according to the immediate wishes of a majority group. By making it very difficult to change the rules, you would force BOTH sides to create rules that they both could live with as a legislative body.
But since the modern Senate is just an offshoot of show-biz, we have what we have.
It seems to me that filibustering got too easy. Used to be that the physical demands of standing up and talking usually limited filibustering. Making it easier to filibuster inevitably led to the nuc-uh-ler option IMHO. Just saying.