I have written previously about the upcoming vote in the U.S. Senate on the nomination of Judge Neil Gorsuch to take the place of Antonin Scalia on the Supreme Court. Specifically, I wrote about the need for Senate Democrats to oppose the nomination by way of a filibuster, even if the ultimate consequence is a decision by Senate Republicans to eliminate the use of the filibuster rule for Supreme Court nominations, much as Senate Democrats had done for all other presidential appointments when they held the Senate majority.
But as the vote nears, and the prospects of a filibuster of Judge Gorsuch becomes a bit more likely after Senate Democratic leader Charles Schumer pledged to make it happen, I've broadened my view on this subject. I believe that it is time--perhaps past time--to eliminate the filibuster altogether.
Why?
To begin with, the rule itself has a worse-than-checkered history. Our educational system and political culture has led us to believe that the rule has existed from the birth of the Republic as part of a grander design, to enable the Senate to serve, in the words of George Washington, as a kind of "saucer" to cool the passions of the more-frequently-elected members of the House of Representatives. In addition, we have been led to believe that the filibuster rule has helped to promote the reputation of the Senate as the "World's Greatest Deliberative Body," by encouraging debate on the issues of the day and the legislation designed to address them.
However, if you look at the actual history of the rule itself, you will find that (a) its adoption was somewhere between a mistake and an afterthought, and (b) it has never been useful in promoting anything but contention and deadlock. I offer this article from the Brookings Institution's Web site for a lengthier discussion of this history.
And matters have gotten worse since a rule changed allowed for what we have today: filibusters that take place without a single word uttered by the filibustering senator. At least when the "talking filibuster" was required, senators who wanted to stop a bill by delay had to sing for their proverbial supper. Now, they don't have to do that. The easier it is to obstruct, the greater the likelihood is that there will be obstruction.
Even worse, the greater likelihood of obstruction has been cynically used by Senate majorities of both parties, as a way of avoiding tough votes on controversial measures. Take the recent (as in last week) House vote on repealing and replacing the now not-so-unpopular Affordable Care Act (yes, "Obamacare," if you will). Even if Paul Ryan had managed to get his rancid piece of legislation out of the House he allegedly controls, Mitch McCONnell would have allowed the Democrats to filibuster it to death, by finding that it didn't meet the Byrd rule requirement as a piece of revenue-only legislation and was thus subject to the 60-vote cloture hurdle before it could get to an actual vote. Thus, Senate Republicans wouldn't have had to take the heat for throwing 24 million Americans off of their health insurance--and the Democrats could be blamed for it all.
Thus, the filibuster harms the American legislative process in two ways. It prevents, on the one hand, good ideas from being given a chance to be tested, and ultimately benefit the American people, and, on the other hand, it allows bad ideas to hide behind a threshold that would otherwise allow them to be exposed for what they are.
Some people object to the elimination of the filibuster rule on the grounds that it protects the rights of the minority. This may be particularly important in the case of appointments of federal judges to lifetime jobs. However, if judges of a particular philosophical bent become too numerous, or if legislation yields more harm than benefits, then there's already a check-and-balance built into the Constitutional process; it's called the next election. Apart from this, that's what the judicial system is built for in any case--to protect the rights guaranteed to everyone by the Constitution. That's the job of the judiciary, not the filibuster. One suspects that both Senators and voters will be a lot more cautious and thorough in their vetting of judicial candidates if they know in advance that those candidates will be easier to confirm, and difficult to dislodge after that.
This is why there is no reason that Senate Democrats should hesitate for a minute in filibustering Judge Gorsuch's nomination. If doing so is the beginning of the end of the filibuster, it will ultimately be good for all of us. And Judge Gorsuch, in any case, is well worth opposing. I have already made my case for doing so; here is another eloquent argument along the same lines. And, if that doesn't do it for you, take a look at this.
Your move, Senator Schumer and fellow Senate Democrats. Do the right thing. Stand firm. Stand strong. And stand for Americans of all political persuasions. If it means the beginning of the end of the filibuster, you'll have done your job in any case.
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