Federal Courts and Nominations

The Vote That Will Change America

Minutes ago – and following the Republican filibuster of three important judicial nominees – Senate Majority Leader Harry Reid and his Democratic colleagues finally “went nuclear,” changing the Senate rules to eliminate the filibuster for executive branch appointees and all judicial appointees except those to the Supreme Court.  While the run-up to this vote has probably escaped the notice of all but the most politically obsessed, this vote is without a doubt the most important one the Senate has taken all year and creates one of the most important changes to the Senate in all of American history.  Here’s why.

Let’s start with Patricia Millett – one of the President’s three recent D.C. Circuit nominees, currently being blocked in the Senate by a Republican filibuster.  Prior to the rules change, 60 votes in the Senate were needed to overcome a Republican filibuster and secure Millett’s confirmation.  Of course, that means that a small minority of the Senate – a mere 41 Senators – could block her.  And, indeed, they did block her.  Now, with this rules change, the President only needs a simple majority – really, 50 votes in the Senate, with Vice President Biden casting any necessary tie-breaking votes. 

With this change, the President will be able to fulfill his constitutional duty to nominate qualified candidates to vacancies in the executive branch and the judiciary – eventually staffing those branches and, in turn, promoting the responsive and effective federal government that George Washington and our Founders envisioned.  The President will still benefit from the advice and consent of the Senate – as our Constitution requires.  However, he will no longer by stymied by the filibuster – an extra-constitutional minority veto, once of some use, but now too often misused by Senate minorities. 

Far more important, however, is the precedent that Senator Reid’s move sets.  At this point, Senator Reid and his Democratic colleagues have only eliminated the filibuster for certain presidential nominees.  However, more importantly, they’ve taken the historic step of changing the Senate rules – in this case, a super-majoritarian vote requirement – by a simple majority vote.   The gravity of this move cannot be overstated: Senate rule changes have always required a two-thirds majority; it is part of what makes the Senate such a slow moving, or to be generous, deliberative body.  Having done this once, it is all but inevitable that either this Senate or a future Senate will eventually extend this precedent and eliminate the filibuster for everything else, as well.  Over time, the Senate will simply become a majoritarian institution, much like the House.

Viewed one way, this returns us to the Founders’ vision.  The filibuster isn’t mentioned anywhere in the Constitution.  And, indeed, there are good arguments that it’s contrary to the Founders’ vision.  Looking at the text of the Constitution itself, the Framers knew how to express their preference for super-majority rules when they wanted them.  They did as much, for instance, in the context of veto overrides, impeachment, and expelling their own members.  Furthermore, as flagged in a recent piece by Mark Mellman, Alexander Hamilton addressed the Senate’s role in the appointment process in Federalist No. 66: The Senators “may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose – they can only ratify or reject the choice.”  Yes-or-no.  Up-or-down.  Not delay-and-withdraw.

Viewed another way, this is a risky move.  Without the filibuster, the minority party is stripped of its most important counter-majoritarian power.  And if the opposing party achieves a cohesive majority in the House and the Senate and secures the Presidency, that party will have the power to run right over the minority party and radically change America.  And this process could be repeated every four years – or, in certain circumstances, over a two-year period.  With one of our major parties taken over by Ted Cruz and his fellow tea party radicals, there’s reason for serious concern.

Nevertheless, our federal government was designed as a republic.  Within this system, and over time, elections were to have consequences and enlightened public opinion was to govern.  Extra-constitutional appendages like the filibuster, abused by minority parties, have moved us away from that vision.  Instead, our government is in perpetual gridlock, and the American people have lost faith in their government to even function properly – let alone solve big problems.  Even after this rules change, one of our parties must still win the House, the Senate, and the Presidency before radically changing our country.  That’s no small feat.  It will often require victories over the course of several elections – or a thumping in a single election cycle.  That’s probably as it should be.  Change ought to be possible – but only when one of our parties really earns it.  The filibuster – as abused in recent years and shaped by hyper-partisanship in Washington – gave a small minority in the Senate outsized power to stifle the will of the people.

Paraphrasing Benjamin Franklin, our government remains a Republic.  And, with this rules change, it’s once again up to We the People to keep it.

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