Why Democrats Should Stop Worrying and Learn To Love the Filibuster
The possibility of President Donald Trump placing a third justice on the Supreme Court has some Democrats contemplating abolishing the filibuster if the 2020 election gives them control over the Senate.
The filibuster is a standing provision in procedural rules for the U.S. Senate that allows any senator unlimited floor time to discuss pending legislation. Senators can use that time to stall a bill indefinitely, or until a three-fifths supermajority of senators votes to cut them off and bring an item up for a final vote.
This feature of Senate rules has been used by both and Democrats and Republicans, whenever they find themselves in the minority, to prevent or delay the majority party from passing legislation.
Through the so-called “nuclear option“, a raw majority of senators can permanently limit the type of Senate actions that can be filibustered. Democrats deployed this tactic in 2013 to remove senators’ ability to filibuster the confirmation of executive branch and federal judicial nominees. Republicans did the same thing in 2017 for Supreme Court nominees in order to put Neil Gorsuch on the bench.
That latter action has left Democrats with few options for preventing Trump and the Senate’s current Republican majority from filling the vacancy left by the late Ruth Bader Ginsburg and creating a formidable 6-3 conservative majority on the Supreme Court.
Despite its obvious utility in preventing that perceived disaster, many Democrats are not calling for restoring their ability to filibuster the confirmation of Supreme Court nominees. Instead, they’re saying that they will eliminate the filibuster in its entirety so that no legislation can be held up by a minority of senators.
Going ahead with that plan would likely be a mistake, however. As the results of Democrats’ 2013 reforms show, any weakening of the filibuster by today’s majority can’t help but empower the opposition whenever the senate changes hands.
Given that the electoral map is increasingly stacked against Democrats controlling the Senate, they have the most to lose in the long run from eliminating the filibuster. That’s true even if getting rid of it would help get some progressive policies over the line in 2021.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” said Sen. Ed Markey (D–Mass.) on Friday in reference to Sen. Mitch McConnell’s (R–Ky.)rationale for not allowing votes or holding a hearing on Barack Obama’s Supreme Court nominee, Merrick Garland, in 2016. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
“The filibuster wasn’t made w/ purpose. It’s the result of an accident in rulebook revision & bloomed as a cherished tool of segregationists,” said Rep. Alexandria Ocasio-Cortez (D–N.Y.) in response to Sen. Diane Feinstein’s (D–Calif.) defense of the supermajority requirement. “Now it empowers minority rule. That’s not ‘special,’ it’s unjust.”
Sen. Feinstein’s protection of the filibuster is unjust & unacceptable.
The filibuster wasn’t made w/ purpose. It’s the result of an accident in rulebook revision & bloomed as a cherished tool of segregationists.
Now it empowers minority rule. That’s not “special,” it’s unjust. https://t.co/anKwCSbQWb
— Alexandria Ocasio-Cortez (@AOC) September 22, 2020
Over at The New Yorker, Jeffery Toobin argues that getting rid of the filibuster—alongside other reforms like admitting Puerto Rico and D.C. as states and exp
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