So the US Senate has finally decided to change one of its internal rules of operation concerning the filibuster. This was a rule that required 60 votes out of the 100-member chamber to get procedural matters (such as ending debate on an issue and bringing it to a vote) approved. The filibuster is still in place but will no longer be available to block any administration nominee for any post, except those to the US Supreme Court. Those procedural votes now require only a simply majority. The filibuster also still remains in place for legislation so that gridlock will continue.
I have not been able to get too worked up about this issue. I always that thought that it was absurd that administrators who serve at the will of the president, such as heads of departments, ambassadors, and even cabinet members, needed to get Senate approval at all, even by a simple majority vote. I could see a case being made for Senate approval being necessary for federal judicial appointments since those are lifetime appointments that last beyond the term of the sitting president, but that is all.
But the filibuster, based as it was on a system in which senators were expected to behave as reasonable people who had the best interests of the nation at heart, could never survive the present climate where there has been such a pathological hatred for the Obama administration and its policies that the Republicans were willing to use any means at all on even extraneous matters, including shutting down the government and defaulting on the debt, to try and get its way. The filibuster had become a veto on the administration’s agenda.
In such a climate, ‘gentlemen’s agreements’, as these things used to be so quaintly called, were bound to get discarded along the way. Kevin Drum provides data that shows that while both parties have abused the filibuster, it went off the charts during the Obama presidency. As he says:
The last straw came when Republicans announced their intention to filibuster all of Obama’s nominees to the DC circuit court simply because they didn’t want a Democratic president to be able to fill any more vacancies. At that point, even moderate Democrats had finally had enough. For all practical purposes, Republicans had declared war on Obama’s very legitimacy as president, forbidding him from carrying out a core constitutional duty. Begging and pleading and cutting deals was no longer on the table. Eliminating the filibuster for judicial and executive branch nominees was the only option left, and on Thursday that’s what Democrats finally did.
What I am interested in is how the partial elimination of the filibuster will change the behavior of the Democrats. For example, when it came to judicial appointments, Republicans would nominate people with hardline conservative views (Clarence Thomas, Antonin Scalia, John Roberts, Samuel Alito) and as long as they were seen as having adequate legal qualifications and not guilty of serious breaches of ethics or law, they would get confirmed.
But Democrats would nominate people who were not only qualified in that narrow sense but were also acceptable to right-wingers, and the threat of the filibuster was the reason they gave. So Democrats nominated people like Elena Kagan and Stephen Breyer. As a result, we have seen a rightward shift in the judiciary, with pro-business, pro-authoritarian government people going on the bench. Sonia Sotomayor is the only recent appointment who joins Ruth Bader Ginsburg in showing some promise of pushing back against the rightward tilt.
Now that Democrats can nominate people without worrying about the filibuster, will Obama nominate qualified but more liberal people to balance out the courts? This is what will be interesting to watch. The Democratic leadership becomes nervous when they have the power to carry out their agenda because then they have to find other excuses for abandoning their campaign rhetoric about being on the side of the ordinary people. So I expect to see a continuation of Democrats putting forward people with progressive social views but who are otherwise pro-oligarchy, pro-war, and pro-business.
The partial elimination of the filibuster does not mean that work will get done in the Senate. People would be amazed at the number of self-imposed arcane rules, of which the filibuster is just one, that govern that body. The only way things get done is by everyone agreeing (called ‘unanimous consent’) to suspend the rules in order to move things forward. You can be absolutely certain that with the filibuster removed even in these limited cases, the Republicans will start to use all these other Byzantine rules to stymie any advancement of president Obama’s agenda. So brace yourselves in the coming days to hear a lot more than you ever expected to about obscure Senate rules.
If the Republicans get back into power in Congress and the presidency, and only the filibuster prevents them from repealing the Affordable Care Act, then does anyone doubt that they will ditch the filibuster for even legislation? We will then have a system, for good or bad, that is more akin to a parliamentary system where simple majority votes will decide everything.