Senate Democrats appear set to mount a sustainable filibuster against Neil Gorsuch’s nomination to the Supreme Court. If they follow through, the GOP will have two choices: Withdraw Gorsuch’s nomination and replace him with a more moderate jurist, or kill the filibuster on Supreme Court appointments, and ratify Trump’s pick with a simple majority vote.
Considering the Republican Party’s habit of putting its ideological goals over institutional norms for the last few years (and/or decades), the smart money is on door No. 2.
This fact has produced a good deal of hyperventilating in the upper chamber, as each party laments how the other team’s intransigence threatens to “destroy” the Senate. “If the Senate decides to destroy even further the Senate, they’re gonna also begin the process of destroying the Supreme Court,” Tennessee Republican Bob Corker recently said.
It’s not surprising that lawmakers would characterize the conflict over Gorsuch in these melodramatic terms. But the notion that the abolition of the filibuster would constitute the destruction of the Senate is rather odd. Not only is the filibuster absent from our Constitution, it plainly contravenes that document’s intentions for the upper house.
The framers did consider including a supermajority requirement for judicial appointments and legislation, but decided against it. Instead, they concluded that a supermajority should only be required for the impeachment of presidents; expulsion of senators; ratification of treaties; overriding of a presidential veto; and amending the Constitution.
So, the filibuster is less a vital part of our constitutional system than a (long-standing) affront to the intentions of our founders — one that was repeatedly used to block anti-lynching laws and delay civil-rights legislation.
And yet, as the Gorsuch fight has progressed, mainstream news outlets have taken to framing the abolition of the filibuster as an objectively bad thing. A new Bloomberg article titled, “‘Nuclear’ Bid to Confirm Gorsuch May Radically Change Washington” exemplifies this trend:
It’s called the nuclear option for a reason – it would destroy one of the few restraints that still distinguishes the Senate from the more raucous, majority-rule House. The Senate is often referred to as the world’s greatest deliberative body, and the power the filibuster gives to the minority is what forces that deliberation. Eliminating it would create a ripple effect across Washington, deepening the partisanship. Going nuclear would immediately poison a chamber that requires consensus to operate efficiently.
… Senators warn that if Democrats retaliate, the dispute between the parties may escalate further. Republicans could choose to eliminate the 60-vote threshold not just for presidential nominees but for legislation, so that bills could pass with a simple majority. Such a change would remove the last vestige of the Senate’s long tradition of debate and compromise, turning it into a smaller version of the House and fundamentally transforming the way laws are made.
These passages are descriptive, not argumentative, but the prose is loaded: The nuclear option would “poison” the Senate, rob it of its status as “the world’s greatest deliberative body,” remove the “last vestige” of “tradition,” and make the upper chamber “raucous,” like the House.
Certainly, one can muster positive arguments for the filibuster, as a safeguard against unqualified Supreme Court nominees or an inducement to compromise. Bloomberg’s concern that majority rule in the Senate would encourage the hyperpartisanship that’s been threatening our government’s ability to function is understandable.
But the Republican Party did not need to abolish the filibuster to take the nation’s credit rating hostage for partisan ends in 2011; or to shut down the government in 2013; nullify Barack Obama’s power to appoint Supreme Court justices in 2016; or to nominate a racist reality star for the presidency that same year.
In fact, far from inducing high-minded compromise and deliberation, the filibuster empowered the GOP to routinely block Obama’s nominees to judicial seats the party wished to keep open, or to federal agencies that they wished to abolish.
The strongest case against the filibuster’s abolition — that Supreme Court justices are so powerful, it’s worth retaining a supermajority check on the president’s discretion — draws the lion’s share of its present power from the GOP’s radicalism. In the current context the argument goes: If the Democrats kill the filibuster, Trump could replace Ginsburg with someone not merely ultraconservative (i.e., Gorsuch) but also crazy or unqualified.
But this is a dilemma that only exists if we assume that 50 Republican senators would rubber-stamp the Supreme Court nomination of Judge Andrew Napolitano (or, more realistically, Jared Kushner). In other words, it’s a worry that testifies more to the brokenness of the GOP, than the soundness of the filibuster.
All of which is to say: Yes, hyperpartisanship is a threat to the proper functioning of our government. But the filibuster is demonstrably not an effective palliative for that problem. What troubles our system isn’t that it has too few checks on majority rule, but that an ideologically and procedurally radical right-wing party has near total control of the federal government, even as a majority of voters routinely reject it in national elections.
Against the (kinda bizarre) premise that the filibuster has been a trusty bulwark against dysfunctional partisanship, there’s a strong case that the parliamentary maneuver undermines other conventional notions of good governance. As Matt Yglesias wrote in 2009, the filibuster adds a gratuitous check to a system already overloaded with procedural obstacles to responsive government, while also weakening legislators’ accountability:
At the end of the day the main problem with a supermajority requirement has little to do with specific partisan or ideological concerns. One simply needs to note that bicameralism, plus an independently elected president, plus the congressional committee syste, plus a fairly robust system of federalism, plus a fairly robust institution of judicial review constitutes a political system that already has a ton of veto points. The main aggregate impact of all this piling-on of veto points upon veto points is to make it easier than it should be for interest groups to block broad-view reforms.* Adding a supermajority requirement in the senate on to all of that exacerbates the existing pathologies of the system. It also allows each individual senator to drive a harder bargain in the horse-trading and log-rolling sweepstakes in a manner that rarely serves the public interest. Perhaps most important of all, it tends to undermine democratic accountability by blurring the relationship between election results and policy outcomes — what you want is for election winners to be held responsible for the results, but to do that you can’t let the losers play a major role in shaping policy. Similarly, you should want candidates to be held responsible for their ideas, not to embrace policies with a kind of wink-wink you’ll never get 60 votes for that sub rosa understanding that it’s not meant to be taken seriously.
As Alex Seitz-Wald has noted, for these and other reasons, the filibuster was not just rejected by our founding fathers, but by everyone else who ever sat down to design a legislative system:
Presumably, if the filibuster were such a brilliant ideas, other democracies would follow our lead when setting up their own legislature. That hasn’t happened. Looking at state legislatures, the same is true. In the rare instances when supermajorities are required, like in California, where you need two-thirds of the votes to raise taxes, the effect has been disastrous. Say we had an opportunity to start over and build a government from scratch, would we create a filibuster? This is isn’t just a thought experiment, and the answer is no. The U.S. largely drafted the postwar constitution of Japan and Germany, but included no supermajority requirements.
Finally, it’s worth noting that the filibuster is an inherently conservative mechanism and its abolition would be good for the progressive movement. The Senate’s supermajority requirement makes it very difficult to pass major social legislation. But as the untimely death of Trumpcare just demonstrated, it isn’t the primary obstacle to a major rollback of the welfare state under Republican rule. The filibuster did not kill George W. Bush’s plan for Social Security privatization, and it didn’t save Obamacare — welfare retrenchment did.
If all the Democrats get out of their attempt to block Gorsuch is the (beginning of) the end of the filibuster — in all its forms — that would be a win in its own right.