Most legal scholars agree that Supreme Court nominee Neil Gorsuch has the necessary experience, expertise, and temperament to be confirmed as Justice Scalia’s replacement. But suppose the Democrats decide to filibuster the nomination and Republicans can’t get the 60 votes needed to break the filibuster? If that happens, you can expect the Republicans to “go nuclear” and change the filibuster rules so that only 51 votes are required to shut off debate. To understand what that means, here’s a short backgrounder on the filibuster:
Senate filibusters have been around since 1837. Beginning in 1917, a cloture vote to shut off debate required a 2/3 supermajority; that was changed to 60 votes in 1975. Sen. Strom Thurmond (D-SC) set the record with a 1957 talk-a-thon against civil rights legislation: 24 hours, 18 minutes. Nowadays, senators need not actually speak. They merely announce their intent to prolong debate and that triggers the 60-vote cloture rule.
Suppose senators want to revise the 60-vote rule. Rules can be revised by majority vote. But suppose further that the vote on revising the 60-vote rule is itself filibustered. According to Senate rules, if a vote to change the 60-vote rule is filibustered, it takes two-thirds of the senators to break the filibuster. The so-called nuclear option would override that rule.
There are two versions of the nuclear option – one simple and one complicated. First, the simple version: On the first day of a new Congress, Senate rules don’t yet apply. Therefore, new rules can be adopted – and debate can be halted – by the default procedure, which is majority vote. After the first day, however, that option isn’t available.
The second version is more complicated; but it can be used at any time. One party, let’s say the Republicans, moves to change the 60-vote cloture rule to 51 votes. The Democrats filibuster the rule-change – which means it would take 67 votes to close debate. Republicans then go for the nuclear option – which is a point-of-order, upheld by the presiding officer, declaring that the 67-vote requirement is unconstitutional.
In 2005, it was the Republicans threatening the nuclear option to stop Democrats from blocking confirmation of George W. Bush’s judicial nominees. In response, the Democrats said they’d shut down all Senate business. Then-Senator Obama (D-IL) said, “I urge my Republican colleagues not to go through with changing these rules. In the long run, it is not a good result for either party.” Eventually, the confrontation was diffused when the Gang of 14 – seven senators from each party – agreed not to filibuster judicial nominees, except in extraordinary circumstances. So, the Republicans never did use the nuclear option. But eight years later, the Democrats had gained control of the Senate. Majority leader Harry Reid (D-NV), who had previously opposed any effort to change the Senate’s rules, abruptly decided to support the nuclear option that he had argued vigorously against.
As a result, we now have a new rule: the minority cannot filibuster executive appointments and federal judicial nominees, except for Supreme Court nominees. Of course, with the Republicans back in control of the Senate, the rule change backfired on Reid and the Democrats. Not only was it an unexpected gift to the Republicans, but it also opened the door to a second use of the nuclear option, if necessary, to ensure confirmation of Trump’s Supreme Court nominees. And that’s what will happen if the Democrats try to stop Neil Gorsuch.
For what it’s worth, here’s my view of the matter: The gripe against the filibuster is that it’s undemocratic because it stifles majority rule. That misses the point. We are a republic, not a democracy, and our Constitution is intentionally undemocratic. The Framers were concerned about tyranny by the majority. Recent majorities, on both sides of the aisle, have proven that those concerns are justified. Majority parties have killed bills in committee, refused floor votes, and blocked amendments – essentially denying the minority any meaningful role. The filibuster is a partial counterweight to those problems.
Furthermore, the Framers wrote a Constitution replete with protections that limit majority rule. To name just a few: we have limited and enumerated federal powers, two senators from each state, the electoral college, and the Bill of Rights. And note that the Constitution requires a 2/3 vote to propose constitutional amendments, override vetoes, approve treaties, impeach the president, and expel a congressman. The filibuster’s supermajority requirement may be undemocratic, but that’s precisely why we have it.
Without the filibuster, we would be laboring under a federal government far larger than today’s behemoth. Thanks to the filibuster, senators can occasionally throw a few grains of sand in the ever-grinding wheels of the regulatory and redistributive state. Milton Friedman captured that point when he said, “I just shudder at what would happen to freedom in this country if the government were efficient.” He was right. The filibuster is a valuable safeguard. We’d be better off if it were codified as part of the Constitution – especially for votes on significant expenditures and tax increases – and also for confirmation of federal judges, who have lifetime tenure on the bench. Unless and until we establish judicial term limits, it’s little enough to insist that lifetime appointees be approved by 60 senators.
More likely, however, the availability of the filibuster for Supreme Court nominees will be short-lived.