We Americans are no longer members of a consensual society, devoted to limited government and the rule of law. So, is the filibuster still a guardian of our freedoms?…
After eight years of the most radical President in American history, our “fundamentally transformed” nation can no longer afford to allow use of the filibuster for any purpose. Far beyond the recent conflict over the nomination of Neil Gorsuch to the Supreme Court, this once valuable aide to legislative consensus building has become a tool for the cynical abuse of rules of comity for corrupt ends. Now merely an occasion of abuse, the filibuster must be put aside so that governance may again be possible and perhaps, just perhaps, sufficient consensus rebuilt so that a rule in its spirit may again become possible.
None of this is to say that the filibuster was ill-considered or counterproductive, either in principle or in previous practice. The rule allowed a small group of Senators to extend debate until and unless a supermajority (first two-thirds, then three-fifths) voted to bring it to an end. The filibuster was fully in keeping with the intentions of the Framers of our Constitution. The Framers feared that factions might use the powers of the federal government to institute policies aimed at serving particular interests at the expense of the common good. The system of separated powers, defended through checks and balances, was intended to prevent this. The Framers further aimed to forestall precipitate action by establishing an assembly in which members would recognize the importance of disinterested deliberation. In the Senate especially, the variety of interests and, more, the existence of a disinterested group of legislators willing and able to insist on proper deliberation of any given issue, would defeat factional schemes through honest debate. The filibuster was an aid to this design because it allowed a small group to bring the chamber’s work to a halt until and unless a broad coalition agreed that it was time to move forward. As one or a few Senators tested their fortitude speaking endlessly on the Senate floor, others would be forced to forge an agreement on some policy that would gain sufficient support to bring the filibuster to an end.
For over a century this rule was unnecessary. Senators simply spoke for as long as they thought was necessary, without fear that they would be stopped. It was not until 1917 that the “cloture” rule was instituted, allowing a two-thirds vote to end debate. Up until this time, debate ended only when it, well, ended. Senators spoke for as long as they deemed appropriate and needed. Self-evidently, prolonged debate did not kill the republic. Whatever their failings, Senators retained sufficient legislative virtue (or Constitutional morality) to recognize the necessity that legislation generally have broad support. More fundamentally, there was common agreement that the federal government had the power only to make laws regarding a limited number of issues with limited effects on the lives and governance of the people in their communities. This agreement left much less room than our current era of Big Government (a.k.a. Social Democracy) for most hyper-partisan disagreements. The one, massive, and tragic exception to this was, of course, slavery and the Civil War produced by the infection of the body politic brought about by its unanticipated survival and entrenchment beyond the early nineteenth century.
Cloture was rarely achieved, meaning that the bill under consideration either died or was modified sufficiently to mollify those filibustering. There were, of course, notable exceptions, including the filibuster of the Civil Rights Act of 1964. Proponents of that legislation gained sufficient support for cloture and passage over the objections of its opponents.
Only during the 1970s were the rules changed to accommodate the filibuster as a mere legislative tactic, rather than the broad shutdown of Senate business that was its original nature. Amidst the massive expansion of government business and partisan conflict during Richard Nixon’s institutionalization of Lyndon Johnson’s Great Society, a “two-track” system was instituted. This allowed the filibuster to take place merely in the imagination of the Senators as they continued to conduct other business on the floor. The filibuster lost its drama and the process became invisible and politically cheap. Moreover, Senators lost the motivation to negotiate, meaning that the filibuster merely raised the bar for passage of a bill or (far less often) approval of a nominee.
During this same era, the judiciary had become highly politicized. Still, rules of comity continued to hold sway regarding Senate consideration of judicial nominees. Qualifications rather than ideology were considered the topic of proper consideration during confirmation hearings, and the filibuster was rarely discussed, let alone used. Not even during the Reagan presidency, when vicious politicking sank the nomination of Judge Robert Bork and almost sank that of now-Justice Clarence Thomas, was the filibuster seriously considered. But during the presidency of George W. Bush, as textualist and originalist judges began to be appointed in appreciable numbers, Democratic Senators began to threaten multiple filibusters to protect their mastery of the bench. Thus, the first mention of a “nuclear option” to end applicability of the filibuster to judicial nominations was made. A compromise was worked out, but would not survive the Obama presidency.
Once Mr. Obama became President the Democrats found themselves in control of both the legislative and the executive branch. Mr. Obama quickly set about asserting control over the judiciary as well. He appointed scores of judges who shared his ideology of a “living constitution” that could be reinterpreted as necessary to achieve Progressive political ends. Many of these nominees were so radical that Congressional Republicans balked. The opposition was far from uniform or universal. Two openly liberal Justices, Elaina Kagan and Sonia Sotomayor, were elevated to positions on the Supreme Court with supermajority support. But increasingly during the course of Mr. Obama’s two-term Presidency Republicans began mounting substantial opposition to nominees and to federal judicial nominees in particular. Most of the nominees eventually were confirmed, but a significant logjam developed. To stifle opposition and give Mr. Obama greater control, Senate Majority Leader Harry Reid (D-NV) resorted to the nuclear option, changing Senate procedures to disallow filibusters on all such appointments outside the Supreme Court.
Democrats to this day portray Republican actions as unprecedented partisanship. This is true only in the sense that Republicans, unable to counter Mr. Obama’s misuse of Executive Orders and other means of ruling by decree, and horrified at the swift radicalization of the bench ongoing in his administration, began using tools only recently applied (by Democrats) to the nomination process. The radical views of numerous appointees, taken in the context of a radical policy agenda on health care, religious rights, and executive power, all pushed impotent Republicans to their limit. Indeed, as the Obama Administration came to a close, they used their power to place “holds” on judicial nominations and their lately-won majority in the Senate to bring high-level confirmation hearings, including to the Supreme Court, to a halt.
Now, facing a Republican President and a Republican majority, Democrats find themselves in a position similar to that of Republicans a mere few years ago. And they are not happy. Minority Leader Chuck Shumer has announced his own new rule—all Supreme Court nominees now must have a sixty-vote majority for confirmation. The position is ridiculous, as are his openly partisan reasons for opposing the Gorsuch nomination (he is too “anti-little guy”). Under such circumstances, Republicans had a duty to eliminate the minority’s power to abuse the filibuster over Supreme Court nominations.
Unfortunately, current problems with the filibuster go far beyond the nomination of Mr. Gorsuch. It is no secret that President Trump is having troubles corralling Republicans into any kind of coherent reform agenda. Neither is it a secret that Democrats have declared that they will not work with him at all on anything. The claim, of course, is that President Trump is somehow “illegitimate” because the Democrats really, really do not like him. But the point is that we are in brand new and highly dangerous territory at a time when we cannot afford to be.
It is not just that there is no bipartisanship. It is that the Democratic Party has lurched wildly to the left even as the Republican Party has splintered, with “moderate” liberal Republicans continuing to hold sway even as hard-core “resisters” solidify control in the Democratic Party. The Deadlock of Democracy, for centuries a protection of American liberty, now threatens our very existence as a nation. With Obamacare dying, entitlements mired in debt, workers still out of jobs, and an out-of-control bureaucracy seeking to control our every move in business, education, and even social life, inaction no longer means peace for Americans in their local communities; it means accelerating drift toward catastrophe.
Radical progressives held power for eight years, and they made the most of it. Most relevant, here, they undermined an already weakened legislature by putting forward and enforcing executive decrees and a regulatory juggernaut of unprecedented scope. But it will never be enough for them. Progressivism is attached, not to any coherent set of policies, but to movement. Ever more equality, ever more “freedom” from various bad things (poverty, racism, sexism, homophobia, and mere hurt feelings) all are to be provided by an ever-expanding national state. Opposition to this infinite movement now is portrayed as illegitimate—like President Trump’s tiny two percent cut in proposed spending. Under such circumstances, sanity in public life can be restored only if those not wholly ensnared by the ideology and corruption of our deep state are able and willing to re-establish policies and institutions rooted in the realities of limited budgets, limited virtue, and limited capacity for “fundamental transformation.” Given the level of progressive inertia, to demand supermajorities to turn back the tide is to surrender as it drowns us all.
In legislation as well as nomination consideration, we no longer are the consensual society, devoted to limited government and the rule of law, which made the filibuster a guardian of our freedoms. As our nation and society struggle to reconstruct a working, rational consensus, we must not allow a rump party of extremists to ally with opportunists to stifle necessary reform. The filibuster must go until such time as Americans as a people and their public servants again can come to grips with the requirements of good government within a decent society.
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