I had been planning this piece all week but this morning, reading the New York Times, I found that an author and former Congressional staffer named Steven Waldman had beaten me to it. I shall nonetheless go ahead as I had planned. This morning Senate Majority Leader Mitch McConnell invoked the "nuclear option" to halt the Democratic filibuster against Justice Gorsuch. I am glad that he took this step towards a more functioning American democracy, and I hope that filibusters on legislation can be eliminated as well.
There are more similarities between today's liberals and conservatives than either side would like to admit, and one of them is an almost complete disregard for process and a devotion to desired results, by whatever means secured. Democrats complained about filibusters in the Obama years; now they have adopted one to fight the nomination of a fully qualified judge. But for whatever reason, I think differently. Filibusters have always been wrong, and they remain wrong. We will be better off without them--in today's climate, MUCH better off.
The filibuster has a venerable history, but it is truly depressing that in the last twenty years it has become more important than ever before. During the first two-thirds of the twentieth century it was nearly always used for the same purpose: to prevent effective civil rights legislation from securing the rights of black Americans, especially the right not to be lynched with impunity in the former Confederate states. Eventually a bipartisan consensus in the northern states allowed the Senate to overcome filibusters against a moderate civil rights bill in 1960, and another far more radical bill in 1964. In those days it took 2/3 of those Senators present and voting to stop debate and bring a bill to a vote. Later the required number was cut to 60 votes, or 3/5.
A number of authorities have pointed out that the practice of requiring a super-majority appears to be unconstitutional on its face. The Constitution specifies that 2/3 majorities in the Senate will be required to ratify treaties, to convict federal officials impeached by the House, and to pass a Constitutional amendment. These provisions clearly imply that a simple majority should suffice to pass any other legislation or to confirm appointments. It is very interesting that for so much of our history, Senators accepted filibusters only as a regional weapon against one particular kind of legislation. As Waldman pointed out in his piece today, while Republicans certainly abominated a great deal of New Deal legislation--including the Social Security Act--they never filibustered a New Deal measure. Democrats never used filibusters against Republican Supreme Court nominees either, voting two Nixon choices down in 1969-70 by actual majorities, and allowing the confirmation of Clarence Thomas by a very narrow margin.
But by the late 1990s, the Republicans were using the threat of filibusters to kill legislation. That tactic had catastrophic consequences during the first two years of the Obama Administration. Had it not been for the unified Republican threat, the Affordable Care Act would have included a full-scale public option such as the House of Representatives passed. As it was, the defection of just a couple of Democrats was enough to kill it in the Senate. We would also have passed comprehensive immigration reform, which might easily have kept Donald Trump well away from the White House. Had our democracy not lost the ability to pass legislation to solve problems, the political class might have retained the confidence of the country. It didn't.
As I have written repeatedly and at length, from 2009 through 2016 Republicans used every means at hand--led by the threat of filibusters--to prevent Barack Obama from passing any legislation. I was disturbed when the Democrats in the Senate decided that their duty now required them to do the same. As long as our basic freedoms are preserved--and I do not believe at this point that they are seriously threatened--then a bad government is preferable to none at all. Judge Gorsuch is fully qualified and personally distinguished. He will also make a far better justice than most of the men and women that President Trump might appoint. The Democrats feel that Merritt Garland should be on the court, but it is not the filibuster that kept him off. The Republicans now control the Senate. The Democrats will have to undo that condition at the ballot box. To do that they will have to find ways to appeal to the many millions of Red State Americans who have written them off.
Beginning with Brown v. Board of Education in 1954, liberals have relied more and more on the federal courts to secure their objectives. That was how state legislatures were forced to draw electoral districts based upon population, how prayers were banned from schools, how criminal justice was reformed in key ways, how abortion was legalized, how the death penalty was temporarily abolished in the 1960s, and how interracial and gay marriage were legalized throughout the land. Inevitably the Republican Party responded by using the courts to achieve their objectives, including the creation of a new individual right to bear arms and the effective end of laws regulating campaign contributions. This has been catastrophic for American democracy, not least because some of those decisions have never been accepted by large numbers of Americans. Indeed, one could argue that the Republican Party today is a coalition of Americans opposed to the spirit of Brown v. Board of Education, Americans opposed to Roe V. Wade, and Americans opposed to limits on campaign spending. Had some of these issues been decided by the political branches I suspect American democracy will look very different.
Having spent several weeks studying and writing about Tocqueville a few months ago, I know how many of the requirements of effective democracy we lack. We lack any real consensus on many major issues, our people no longer have extensive experience managing their local affairs, and they do not feel anything like the dedication to our institutions that they did for most of the first 200 yars of the Republic. Yet I will not give up on making our institutions work again. That can only happen, in my opinion, if the legislative process can solve real problems. It will not be able to do so in the face of routine Senate filibusters, or reflex opposition by either party to the Supreme Court nominations of Presidents on the other side. Al Smith liked to say that the only cure for the ills of democracy was more democracy, and I still agree.