Wall Street Journal: Let’s Not Wax Nostalgic about the Filibuster

Quote of the Day:

The word “filibuster” exists nowhere in the Constitution. Since it first appeared in the Senate in 1837, it has been bent and revised numerous times until it fell into the hands of its undertaker—Senator Harry Reid.

–Editorial in today's Wall Street Journal

If you believe that Judge Neil Gorsuch will make a fine addition to the Supreme Court, but fear the consequences of the nuclear option, Berkeley law professor John Yoo and U Va law professor Sai Prakash have a column in this morning's Wall Street Journal that may allay your fears.

In "How to Stop Worrying and Learn to Love the Nuclear Option," they recall that in 2013, when the Democrats controlled the Senate, they abolished the filibuster for government appointees and appeals court judges, but not for the Supreme Court.

Minority Leader Chuck Schumer and New Jersey Senator Chris Coons, who are now decrying the Republican use of the nuclear option, were not among the three Democrats who opposed doing away with the filibuster. As the authors observe, "The shoe always pinches when it is on the other foot."

However, they write:

But Republicans had more than revenge on their side; they have the Constitution. Article II, Section 2 creates no special vote threshold for nominees. By contrast, it explicitly requires “two thirds of the Senators present concur” to approve treaties. The Founders never constitutionalized the filibuster; the first one occurred in 1837. Congress managed to reach fundamental decisions—the creation of the first departments, the proposing of the Bill of Rights, the establishment of Hamilton’s national bank—without it. No filibuster was necessary then to secure a senatorial consensus. Nor, as the Gorsuch conflict demonstrates, can a filibuster today heal partisan polarization.

Yoo and Prakash are not even reverent about the filibuster for legislation, which remains:

A Senate minority can still filibuster legislation, though there has been talk of reforming that rule too. As senators consider future steps, they shouldn’t pay much heed to concerns about the filibuster’s protection of the minority. The Senate’s very structure is minoritarian, giving small states a disproportionate share of legislative power. The least populous 25 states have less than one-sixth of the U.S. population but account for half the Senate’s members.

Senators also should keep in mind that the filibuster has strayed far from its roots in promoting deliberation. As in the 1939 film “Mr. Smith Goes to Washington,” senators had to filibuster by physically delivering speeches to prevent the majority from calling for a vote. Sen. Strom Thurmond, then a Democrat from South Carolina, set the record by speaking for 24 hours against the 1957 Civil Rights Act.

. . .

Democrats should check their rage against President Trump and consider the long game. The more enlightened elements of their party have long opposed the filibuster. It is no coincidence that the Senate first adopted cloture during the presidency of Woodrow Wilson, or that it reduced the threshold to 60 votes just after the Watergate class of 1974 took their seats. When Democrats regain the Senate and the White House, they will be able to cite this week’s reform as a precedent for wholesale elimination of the filibuster—if Republicans haven’t gotten there first.

Neither Republicans nor Democrats should fear institutional change. Arcane and opaque rules have allowed a minority to paralyze the Senate and prevent consideration of nominees, treaties and legislation. Democracy is too important to permit winks, nods and obstruction to be the order of the day. Senators should stop worrying and learn to love the nuclear option.

Meanwhile, in an editorial, the Wall Street Journal calls yesterday Senate Majority Leader Mitch McConnell's "finest hour."

Democrats are trying to cover up this embarrassing loss with fig leafs, such as the idea that the filibuster is a sacred totem or that Mr. McConnell grievously sinned by withholding a vote on Merrick Garland in the final year of Barack Obama’s Presidency. The Garland nomination was described widely at the time as a maneuver to put Senate Republicans in a box. The Democrats bet that Republicans would wave through Mr. Garland to avoid President Hillary Clinton appointing someone to the left of Sonia Sotomayor.

It must have been a shock when Mr. McConnell took that bet and waited for the results of the 2016 election to decide the future direction of the Supreme Court. He won. Mr. McConnell deserves great credit both for holding his ground then and for holding his caucus together on breaking the filibuster Thursday in the face of a cynical Democratic narrative about their “stolen” Supreme Court seat.

Oblivious of the irony, Schumer bemoaned the politicization of Supreme Court confirmations and said they go back a long way. As the Journal notes, he's right about that: it goes back to 1987 when the supremely qualified Robert Bork was defeated by the Democrats because of politics.