Today (April 6) the GOP completed Reid’s Revolution in Senate Rules, abolishing the filibuster for Supreme Court appointments. As with the Democrats’ earlier abolition of the filibuster for all appointments save the Supreme Court, this is a bad idea: the filibuster has great value as a safeguard in preventing the confirmation of a thoroughly unacceptable nominee. Madison’s Republic is designed to safeguard minority rights and interests, and force compromise. The filibuster is a valuable tool for that.
The filibuster died, because both parties, when in the majority, accused the minority of abusing the filibuster. Here are complaints from senior Democrats, ca 2010; here from Republicans, ca 2005. And the evidence is that the use of the filibuster has grown dramatically in recent years, because each party’s base demands it.
So here’s the problem: keep the filibuster, but end filibuster abuse. And there’s actually a simple solution: bring back the Gang of 14 solution, but institutionalize it and make it permanent.
Here’s what happened. In 2005, Democrats were filibustering a large number of George W. Bush’s nominees, and the Republicans threatened to abolish the filibuster. To protect the filibuster, a group of 14 Senators, seven from each party, agreed to vote to protect the filibuster, but also agreed that they would vote to end any filibuster on a nominee except “in extraordinary circumstances”. Seven Republicans were sufficient to block a rule change, thus preserving the filibuster; seven Democrats were sufficient to enforce cloture on any filibuster. End of problem.
Unfortunately, the agreement only held through the 109th Congress, and has slipped into memory.
It’s time to bring it back and institutionalize it. Here’s how it would work. Each party, at the beginning of each Congress, would submit a list of the other party’s judicial nominees for the Supreme Court and each Circuit which they would agree not to filibuster, and would agree to bring to the floor for a vote. If the President picked from the list, the nominee would be guaranteed a floor vote; if he picked off the list, anything goes. In return, the majority agrees to preserve the filibuster.
Had this system been in place in the last year, Merrick Garland would have had a vote and Neil Gorsuch would have been confirmed — and the Democrats would still have a filibuster if they needed one.
- Posted in: Uncategorized