The nomination and confirmation process of Judge Neil Gorsuch has encouraged much conversation about the relevance of the filibuster in the Senate. Simply described the filibuster rule affords the minority the power to object to proposals by the majority essentially forcing the latter to muster 60 votes to gain approval for key positions in government and for laws.
In 2013 Harry Reid, the Democratic Majority Leader in the Senate, initiated a change in the rules of the body regarding the confirmation of cabinet appointments and judges (this action did not apply to SCOTUS nominees). At the time Republicans were filibustering many nominations by President Obama forcing Democrats to find 60 votes for confirmation. Many appointments were delayed or abandoned. Reid and his Democratic colleagues voted to change confirmation votes to a simple majority for the aforementioned positions.
Senate Democrats now in the minority filibustered the Gorsuch confirmation vote so the candidate needs 60 votes to gain confirmation. This time, Mitch McConnell, the Republican Leader, orchestrated a change in the confirmation process relating to SCOTUS nominees to a simple majority.
The Senate is in an uproar as both sides are accusing the other of radically changing Senate traditions. Republicans are saying that Democrats refused to confirm a qualified candidate so they had no choice but to change the confirmation rule. Democrats have been excoriating Gorsuch as a person too radical and close to President Trump to be qualified for the highest court in the land. They indicate that the new rule for a simple majority is a severe move unbecoming of the Senate that will put any cooperation between the competing sides in great jeopardy. Of course the last part of the Democratic stance is total nonsense given the current dysfunctional relationship in the Senate between Republicans and Democrats.
The question is whether the filibuster will now be eliminated in the Senate’s legislative process. In other words will new laws only require a simple majority? Will the minority in the Senate lose the power to stymie new legislation that they deem unacceptable with 41 votes? The answer is nobody knows. Most senators believe the legislative filibuster is sacrosanct, for the time being.
A strong case can be made that the filibuster is anti-democratic, and that it gives the minority power that it doesn’t deserve. After all, voters elect senators with a simple majority. Why should the losers have power that abrogates the simple majority?
The argument for filibuster is that the minority party can block “extreme legislation and unqualified nominees”. It is a way for the opposition to prevent this from occurring. Unfortunately each senator defines “extreme” differently.
The real issues are twofold. For one, some positions the Senate must confirm are lifetime appointments, not elected positions. These include many judgeships and SCOTUS justices. If we institute term limits for these positions the filibuster becomes less significant.
The second problem relates to the definition of our democracy. Does it require winning 60% of the vote in an election? Of course it doesn’t. The filibuster flies in the face of our democratic traditions. Virtually every arm of our governmental system enables those with a majority to rule. Why does the Senate buck this precedent?
For years comity ruled the Senate. Differences, unlike in the rough and tumble House of Representatives, were settled with compromise, in a gentlemanly manner. Today partisanship is rampant making compromise impossible. This in turn makes the Congress incapable of doing its job. Budgets are seldom approved and every cabinet and judgeship confirmation is a three ring circus where politicians bloviate, and insult nominees and each other.
I vote against filibusters. The majority, not the supermajority, should rule. I vote for term limits for the president, Congress and all justices. That way a mistake can be rectified before the individual passes away. I vote for a government that can do its business.