Nuclear weapons are often invoked and, fortunately, rarely used. They are in the news in two different venues these days. I’ll ignore the whack-job dictator of North Korea and his penchant for threatening to use nukes and will instead focus on the US Senate and its version of a nuclear arsenal. The so-called nuclear option is anything but — at least I don’t think it threatens the existence of the republic.
The US Senate, formerly lovingly and currently mockingly referred to as the greatest deliberative body in the world, was open to unrestrained debate until 1917. But in that time there were very few filibusters.[1] According to a Washington Post article, “between 1840 and 1900, there were 16 filibusters.”[2] That seems about right. Every once in a while a momentous issue demands unlimited discussion.[3] www.washingtonpost.com/blogs/ezra-klein/post/is-the-filibuster-unconstitutional/2012/05/15/gIQAYLp7QU_blog.html?tid=a_inl&utm_term=.021830de08ed
Despite its relative nonuse, the filibuster became embedded in the culture of the Senate, based on the belief that “any senator should have the right to speak as long as necessary on any issue.” https://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.htm
Like many other governmental structures in this country, the filibuster has its roots in ancient Rome. The Roman Senate had a rule that all business before it must be concluded by the end of the day. A long-winded senator could inadvertently speak so long that dusk and the motion under consideration fell. Cato the Younger started purposely speaking until nightfall to forestall certain initiatives of Julius Caesar. Thus was born the intentional filibuster.
It’s a quaint notion, one that reason and experience show to be utterly without merit. Have you heard a senator speak recently? When was the last time a senator said anything that made you sit up and take notice, that excited you about the prospects of senatorial action, that made you think that particular senator had something to say that wasn’t clouded over with partisanship? I’m not going to say it never happens, just that it is a preciously rare occurrence.
The original filibuster was a test of endurance. The person wishing to extend debate had to, you know, debate. How picturesque. The best known use of a filibuster occurred in a fictional setting. You should watch Mr. Smith Goes to Washington to see the toll an actual filibuster exacts. It will help you appreciate and respect practitioners of a true filibuster. Alas, our actual senators are made of less stern stuff. They apparently decided that, even for them, talking on and on is not worth the effort, hence the virtual filibuster. Senators can now check a box and reap the benefits of the filibuster without expending any energy or missing any bathroom breaks. Senators can now debate without limit without debating.
Our nation would be better served by a rule that prevents senators from speaking than one that allows them to speak without limit. We should let them negotiate among themselves and with the executive branch and the house, let them investigate executive overreach, let them vote, let them do any number of other things, and we should require them to spare us the partisan gibber-jabber. Surely I jest, but a man can dream, can’t he.
There are limits on filibusters, decency is one, but the most important is cloture. In 1917, the Senate tired of its own self-administered straitjacket inhibiting the passage of legislation and adopted Rule 22. The rule allows the Senate to end debate. Initially, it took 66 senators to invoke cloture, but at least debate could be restricted. Now the rule allows 60 votes to close debate – unless the leaders of the Senate decide to allow fewer votes to close debate.
The leaders did just that in November 2013, when the Harry Reid-led Democrats decided that enough was enough. They voted 52-48 to end a filibuster of President Obama’s various executive and judicial nominees. https://en.wikipedia.org/wiki/Filibuster That nuclear blast did not exterminate the republic, but it opened the door to more. Talk about foregone conclusions.[4]
Recently, senate Democrats stated that they just didn’t know enough about Neil Gorsuch to vote on him. Poppycock. They didn’t want more debate they wanted less Gorsuch. This time Senate Majority Leader Mitch McConnell decided that enough was enough and the Republican-controlled Senate voted to end the filibuster by a simple majority vote. Gorsuch now sits on the highest court in the land and the republic still stands.
The rule that “requires” the Senate to act by a super-majority of 60 votes leavens the political process by forcing legislation or nominees closer to the center. The party in the majority would accommodate enough moderates in the other party to reach 60 votes. That no longer works because there aren’t many moderates left, the parties vigorously enforce orthodoxy, and the spirit of compromise has left the Capitol.
Every step away from a moderate position emboldens the politicians more. Mitch McConnell recently stated, after Gorsuch was confirmed, that he felt vindicated. If by “vindicated,” he means “I used partisan maneuvers to my advantage and I won,” then he should feel vindicated. But did the country win?
Leave aside Gorsuch because no single nominee matters all that much in the long term. What McConnell did was really quite shameful. He refused to hold hearings, which, as far as I can tell, is one of the few things the Senate is any good at. He refused to schedule a vote on a duly nominated candidate for the US Supreme Court. He should realize that that will make it easier for the Democrats to do the same thing to a Republican nominee in the future. He should have scheduled hearings and a vote. Then the Republicans could have voted against the nominee and we would be where we are, but we would have arrived with integrity and respect for the process.
I like the filibuster rule, but it has become too easy. The minority party can simply check a box and the majority party can sit on a nominee. Neither of these positions advances the spirit or the letter of senatorial conduct. Instead, we should demand that Senators engaging in a filibuster stand up and talk until they exhaust themselves. We should demand that Senate leaders schedule votes on properly presented nominees. We should demand that they stop playing all these reindeer games.
The so-called nuclear option, which is a rule change that enables the Senate to act based on a majority vote, does not strike me as unduly explosive. But continuing to engage in partisan legerdemain will continue widening the wedge between the parties. That will likely ultimately yield ruinous consequences. As both the Bible (Mark 3:25) and Abraham Lincoln (June 16, 1858) assert, a house divided against itself cannot stand.
[1] The filibuster is a parliamentary procedure that allows debate on a matter to be extended. The practical import is that a vote on the matter under discussion can be delayed or, in extreme cases, prevented.
[2] Also according to the article, the first filibuster took place 50 years after the ratification of the Constitution.
[3] Conversely, in 2009-10, there were 130 filibusters.
[4] Nominally, it still takes 60 votes to pass legislation. But it’s just a matter of time before that barrier is breached.
For the brief period that it existed, I enjoyed the 8 member court and now feel sad to see it return to it’s nine seat form, not to mention the loss of the 60 seat majority and the respect that inferred as a symbol of rational thought, patience and cohesion from the senate – and the nation as a whole.
While it lasted, the eight seat court lent itself to a notion of a judicial republic. I think I need to consider this idea a bit more.
It is interesting to see all the different ways people have responded to your post. I think that’s a sign of a good blog.
Totally agree with your commentary on McConnell – calling his actions shameful is rather generous, I think…
I’m with you Julie. Well done Bob.
My college roommate Stephen sent an email which I have copied to the comments section with his permission.
Enjoyed, as usual.
One small note that I have to interject as your one interlocutor who does research on N. Korea: KJU may be a ruthless dictator, an unpredictable dictator or, if you prefer, an evil dictator, but one thing he and the N. Korean leadership have never been are “whack-job dictators”. They are very savvy, very clever, and very rational (even to the extent that it suits them well for the world to think that they might be slightly unhinged). With a strategy of regime survival guiding them for the last 25 years, they have pulled off a remarkable feat in playing a poor hand as well as they have all this time. The rest of the world may, rightly, be very unhappy with what they are doing and their human rights record may be among the world’s worst, but thinking that they are crazy actually impedes finding a solution to the problem.
Btw, you might enjoy reading Bandi’s The Accusation: I think there is some real question whether the story behind it is true in terms of being smuggled out, but I feel certain that the author was indeed a North Korean writer in the literary apparatus: https://www.theguardian.com/books/2017/mar/11/the-accusation-forbidden-stories-from-inside-north-korea-by-bandi-review
Actually, more immediate, and a bit less relentless, is this N. Korean short story you can find online. You may recognize the name of the translator: http://www.wordswithoutborders.org/article/second-encounter
First time commenter, long time reader. I enjoy your commentary and insights. I especially appreciate your gifted writing.
To the matter at hand- I agree that the legislative filibuster should be reformed along the lines that you suggest.
But I believe the legislative filibuster differs from the advise and consent function of the Senate. These differences are based on both constitutional text and history. Republicans have honored that text and history while the democrats, over the course of the past 30 years (beginning with Senator Kennedy’s “Borking”), have transformed this process from a safeguard against unqualified nominees to an exercise of pure power politics.
Recall, for example, that republicans “filibustered” Obama’s lower court nominees according to the Senate rule established by the democrats in 2003 which denied President Bush the ability to appoint numerous judges.
Recall further that Senator McConnell was following the “Biden Rule” and the explicitly stated intentions of Senator Reid in allowing the American people to decide the fate of Merrick Garland. For the first time, republicans beat the democrats at their own “reindeer games.” There is no shame and, yes, the country won.
What is truly “shameful” is that Supreme Court justices (too often a majority) – with the acquiescence of the other two equal branches of government and too many Americans – convene a constitutional convention every time they take the bench. A house built by a judicial oligarchy should not stand.
I’m concerned that our politics are turning into the Middle East in that we remember every “evil” deed of the other team and will hold it against them forever. That enables our team to justify its own “evil” deeds. And decency and respect for others lose again. We really are all on the same team, we are Americans. Too often partisans believe their party is sinless, as pure as new fallen snow, and that the other party is guided by Lucifer. Neither can possibly be true.
Thanks for polite summary. The republic has not collapsed but a brick was removed. Symbolic of our failing system.
Would have liked some reference to how unusual the “Stolen seat” was last year. Unconfirmed but heard someone say that 19 out of 45 Presidents had SCOTUS appointments approved.
Really appreciate and enjoy your writing.
The seat wasn’t really stolen because I don’t think the Republicans would have confirmed him. They should have voted him down instead of exercising a “pocket filibuster.” I’m not sure what they gained by sitting on the nomination instead of voting him down.