America is not mourning the death of the filibuster, but it should

Jon Ward
·Chief National Correspondent

The day before the U.S. Senate was poised to deal what some consider a serious blow to democracy, no one seemed to care.

None of the major national newspapers’ front pages had articles about the debate over plans to eliminate the filibuster. The U.S. Capitol was oddly quiet, with none of the buzz of activity and press attention that accompanied deliberations over the Republican health care bill just three weeks earlier.

And as the vote to employ the so-called nuclear option neared, members of the Senate were under no political pressure from voters to find a way to resolve the ever-escalating legislative war between Republicans and Democrats.

Rather, liberal groups demanded that Democratic senators block President Trump’s Supreme Court nominee, Neil Gorsuch. And Republicans were under equally intense pressure not to back down from the confrontation.

“Republicans aren’t going to be played for suckers and chumps,” Sen. Tom Cotton, R-Ark., said on the Senate floor Tuesday afternoon.

And so Senate Majority Leader Mitch McConnell, R-Ky., will on Thursday move to change long-standing Senate rules that require majorities to marshal 60 votes to overcome a filibuster when it comes to Supreme Court nominations.

If the rule change receives at least 50 votes from the 52 Republican senators, then the Senate will have eliminated a check on majority rule that McConnell, in 2012, called “one of the most cherished safeguards of liberty in our government — the right of a political minority to have a voice.”

Without the filibuster, the extreme polarization in American politics that has produced its demise will only worsen. Constraints that force both parties to work together will be reduced. The spinning top of American democracy, already wobbly, will be set to gyrate even more wildly.

Sens. Steve Daines, R-Mont., center, speaks next to other Republicans on behalf of Judge Neil Gorsuch’s nomination to the Supreme Court. (Photo: Win McNamee/Getty Images)
Sen. Steve Daines, R-Mont., flanked by other Republicans, speaks in support of Judge Neil Gorsuch’s nomination to the Supreme Court. (Photo: Win McNamee/Getty Images)

Sen. John McCain, R-ArIz., was one of the few senators from either side to say anything critical about their own party, even though the recently reelected war veteran said he would reluctantly vote for the rule change.

“I believe our actions will haunt us,” McCain said on the Senate floor Wednesday morning. “I fear that someday we will regret what we’re about to do. In fact, I’m confident we will.”

McCain read from a 2012 McConnell op-ed in which the then-Senate minority leader decried Democrats for planning to eliminate the filibuster on confirming judges for courts below the Supreme Court.

McConnell said that “senators have traditionally defended the Senate as an institution, because they knew that the Senate was the last legislative check for political minorities and small states against the kind of raw exercise of power large states and majority parties have always been tempted to wield.”

“Do Democrats really want to go down this road?” McConnell wrote then.

The argument in favor of requiring the current 60-vote supermajority to approve a judge is that it prevents extremists or partisans who are obviously unqualified from being nominated, because votes from the minority party are usually required to reach that number.

McCain also read a 2013 quote from Sen. Richard Burr, R-N.C., who said that “if sweeping legislation and lifetime appointments cannot muster 60 votes in the United States Senate, then it’s probably not a good idea to force either on the American people.” That is the exact argument made by Democrats now in opposition to the Gorsuch nomination.

McCain said that Republicans needed to “remember our own words and heed our own warnings.”

But McCain also read quotes from Democratic senators who just a few years ago were calling for then-Senate Majority Leader Harry Reid, D-Nev., to get rid of the filibuster for lower-court nominees.

Sen. Elizabeth Warren, D-Mass., said in 2013 that if Republicans continued to filibuster former President Barack Obama’s nominees, then “senators have a duty to change the filibuster rules.” And Sen. Bernie Sanders, I-Vt., said that “it’s time for the Democratic leadership to do what the American people want and that is to have a majority rule in the United States Senate.”

McConnell now argues that he is only allowing the Senate to get to a vote on the Gorsuch nomination, and that he would not get rid of the filibuster with regard to passing laws. But senators like McCain argue that a removal of the legislative filibuster will be inevitable if the judicial filibuster goes down.

Republicans complain that no Supreme Court nominee has ever been filibustered in a partisan fashion. Democrats are incensed that McConnell refused to allow a vote on Judge Merrick Garland, the nominee put forward last year by Obama after Justice Antonin Scalia died.

The recriminations go back and forth. The debate in the Senate this week has largely consisted of finger pointing. The argument on both sides is essentially that they are being forced to do the wrong thing because the other side started it and because their opponent will take advantage of them if they don’t respond in kind.

“We cannot have one set of rules for Democratic presidents and another set of rules for Republican presidents,” Sen. Tom Carper, D-Del., said this week.

The only way to break the cycle is for someone to do what they say they wish they could and take a stand on principle, even if it costs their side politically in the short term, and even if it costs them their seat in the Senate. If no one does this, it will be a triumph of short-term thinking for political gain, putting political interests above country and posterity.

And while lawmakers of both parties will be failing a test of leadership, they will be doing so according to the normal rules of politics, by which politicians respond to pressure from voters. And there is no loud outcry from average citizens over the Senate’s impending diminution.

It will be the most obvious example of a lamentable fact: Institutions — especially those that prioritize slowing down and putting a brake on the passions of the nation’s popular will — no longer hold much of a place in the popular imagination or in the affections of the average citizen.

And, McCain said during his floor speech, this action will be done by an institution that is no longer trusted by most Americans, which will lead to a further undermining of another American institution that undergirds democracy: the rule of law.

“We will see more and more nominees from the extremes of both left and right,” McCain said. “Americans will no longer be confident of equal protection under the law.”

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