The Senate is broken, but eliminating the filibuster is only likely to exacerbate the underlying causes of the institution’s dysfunction.
This is not the conventional wisdom, of course, which maintains that it’s excessive minority obstruction that makes the Senate unable to pass important legislation. Proponents of this view point to the gridlock that results from the filibuster. And behind it they see ideological and partisan polarization, geographic sorting of the electorate, and the prevalence of special interest money in campaigns.
Debates over government practices and processes in the U.S., like the Senate’s filibuster, typically come amidst specific disputes, such as Gorsuch’s confirmation. As a result, support or opposition to those practices or processes typically depend on whose ox is getting gored in the particular debate. Republicans last week eliminated the filibuster for Supreme Court nominees, Democrats opposed it. Democrats eliminated the filibuster for lower-court nominees and executive officers in 2013, Republicans opposed it. Given the taboo has been violated in these debates, and voters responded with little more than a yawn, I wouldn’t bet on the filibuster’s long-term continuation for ordinary legislation.
There’ll be some differences with its elimination, but I expect the overall effect will be a wash.
The new politics of Supreme Court confirmations substantially affects the retirement calculus for justices. The elimination of the filibuster for Supreme Court nominations together with the much stronger possibility that a Senate controlled by one party will not confirm a Court nomination by the President of the other will change the date of many justices’ retirements.
Three objectives inform the retirement decisions of Supreme Court justices. First, justices would like to preserve their legacy and thus would prefer to be replaced by a justice like themselves. Second, most justices want to hand back the seat to a President of the party that appointed them. This is secondary to the first objective and when their judicial views diverge substantially from the party that appointed them, as it did in the cases of Justices Blackmun, Stevens and Souter, they will resign during the Presidency of the other party. Third, they want to resign at a time when it will not cause institutional damage to the Court or inconvenience to their colleagues.
The death of the filibuster and the possibility of a blockade generally makes it much easier to meet these objectives if the President and the Senate are controlled by the same party. First, the blockade can leave the Court short staffed, inconveniencing their colleagues. More importantly, the standoff between the President and Senate places the Court in a partisan cross-fire, harming its legitimacy.
In contrast, the absence of a filibuster gives a free hand to the party that appointed the justice if he resigns during a period of unified control of the Senate and Presidency by that party.
The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves. And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.
The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term. The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy.
Donald Trump has the best opportunity of any President to create a judiciary that follows the Constitution as written.
“Abortion Cases in Court Helped Tilt Democrats Against the Filibuster.” This New York Times front-page story was a press release rather than an investigative report. Through it, the Obama Administration and the Democratic Party cast aside their pretense that they had turned the Senate into a purely partisan body for any public-spirited reason, and broadcast to their most faithful supporters a powerful message: We are packing the Federal Courts for you! Democrat constituencies whose daily bread comes from partisan regulations – the alternative energy industry, for example – knew that already. But less sentient parts of the “base” needed to have it spelled out that the Party uses absolutely all its powers to serve them.
You would have thought we were watching a Mr. Smith Goes to Washington ending with the corrupt Senator shooting filibustering good guy Jimmy Stewart.
Whatever good or ill the filibluster has produced in years past, reliance on this and other institutional devices kept conservatives from making more fundamental arguments concerning the Senate’s purpose. Fundamental, philosophic issues were suppressed in favor of “process.” Thus in the leadership slots we get American variants of Anthony Trollope’s parliamentarian Timothy Beeswax when we need men with virtues beyond cunning.
Will Baude has an interesting post on various aspects of what the Senate Democrats did, which is well worth reading. One question he asks is whether the Senate Democrats passed a new rule or simply refused to apply the existing rule, perhaps creating a precedent. Another question involves the power of the majority of the Senate to make decisions, without being bound by existing Senate rules. The constitutional problem is that the current Senate rules purport to stop a majority from changing the rules, by requiring a 2/3 majority to get cloture on a proposal to change the rules. It is…
The Senate occupies a unique place as the fulcrum of the constitutional order. The filibuster does not occupy a unique place as the fulcrum of the Senate. The course the body took Thursday—which limited the use of the device in presidential nominations—will be added to the growing list of precedents to be avenged in due course, but the filibuster should not be inflated to quasi-constitutional status it does not, and probably ought not, enjoy.