The filibuster is not quite dead. As Miracle Max would explain, it’s just mostly dead.
But excuse me if I don’t weep in either case.
If the filibuster is gone — or mostly gone — that’s a good thing. It’s a good thing if it’s bad for Republicans. It’s a good thing if it’s bad for Democrats. Either way, it’s still good for good government.
When Harry Reid threatened to finally press the nuclear button — and, please, no more mushroom-cloud metaphors — Senate Republicans warned him that he’d rue the day. He probably will. And if Republicans win back the Senate in 2014 — which they might — the day could come sooner than he hoped.
And that’s fine, too.
There are predictions that the small outposts of Washington comity — if not comedy — will all but disappear. But as Democrats must figure, how much worse can it possibly get unless somebody brings back caning as a Senate sport?
[pullquote]In the long history of U.S. District Court judgeships, only 23 nominees have been filibustered; and of those, 20 were nominated by Obama.[/pullquote]
The filibuster is no longer, and really never was, Mr. Smith going to Washington. It’s not Rand Paul doing his one-man, anti-drone bit or Bernie Sanders giving his not-exactly-filibuster long speech on the Bush tax cuts. That’s just theater, and no one is trying to outlaw drama on the Senate floor. In fact, we could use a little more of it.
The filibuster was designed to ensure debate — and lots of it. That’s, in part, how the Senate came to be known as world’s greatest deliberative body (although I’m not sure who put that to a vote, or which body is runner-up). But the filibuster has an ugly history, made mostly by Southern Democrats using it to hold back anti-lynching laws and other civil rights action.
And now instead of protecting the rights of minority opinion in the Senate — a good and decent idea — it’s routinely abused in order to upend the whole concept of majority rule, which, if I remember correctly, is sort of the basis of democracy.
You needed 67 votes to end debate in the bad old days. Eventually, they changed it to 60 – and 60 is still too many when Republicans have made 60 votes the norm for passing virtually any legislation (which remains unaffected by the new rules, so far) or confirming either judges or executive-branch positions. Majority rule has become supermajority rule, and in a closely divided country, that means almost nothing happens — which is apparently how Obama-era Republicans prefer it.
Both parties have been glad to use the filibuster — you may remember when Mitch McConnell was demanding that Democrats allow an up-or-down vote — but Republicans finally pushed too far. Change had become inevitable, if, of course, Democrats ever found the nerve.
The fights have been about any number of things. As Dave Weigel points out in Slate, the real drive for change may have begun when Republicans filibustered a would-be deputy secretary of the Interior — a Ken Salazar nominee — back in 2009. Young liberals in the party have been pushing Reid hard ever since.
Barack Obama, who defended the filibuster along with other Democrats when he was in the Senate minority, praised the filibuster change, pointing out the absurdity of Chuck Hagel, a former Republican senator, becoming the first secretary of defense to be filibustered — and by his old Senate Republican colleagues.
But mostly this is about judges. The judge wars began with Robert Bork, and they’ve been fought relentlessly ever since. These fights basically register only when they’re about the Supreme Court, but there are lots of federal courts. Reid offered up this statistic: In the long history of U.S. District Court judgeships, only 23 nominees have been filibustered; and of those, 20 were nominated by Obama.
For presidents, this is legacy stuff. The president goes home, and the judges remain on the job. Now we’ve seen an outbreak of young nominees to the Supreme Court. It’s one part philosophical and two parts actuarial. We hear a lot about unelected judges having too much power — and they probably do. But it’s too easy to say they’re unelected. They’re appointed by the person we do elect, knowing pretty much who he or she is going to appoint. A Bush is going to name a Roberts. An Obama is going to name a Sotomayor.
The filibuster change — which doesn’t affect the Supreme Court nominees, at least not yet — came directly from a Republican dare in blocking three consecutive Obama nominations to the D.C. Circuit court, generally called the second-most important court in the land. It’s the court that determines most government cases. There are three vacancies, and Obama is trying to break a 4-4 tie. To keep the tie, Republicans had actually tried to eliminate the three jobs — an unpacking of the court.
When Obama’s three nominees — all well qualified — were all successfully filibustered, Reid had no choice. And so, with a Democratic president and a Democratic Senate, judges will now be nominated and approved. A long backlog of executive branch appointments will now be nominated and approved. Republicans will scream about revenge and will almost certainly use other tactics to slow down the process. And Washington ugliness will grow even uglier.
But when Republican some day regain the majority, you can be sure they won’t change the rules back. As of today, 51 finally beats 49, even in the U.S. Senate.