It may seem inconsistent that someone like me, who strongly opposes court packing, to urge the abolition of the filibuster in the Senate.
After all, both the settled number of U.S. Supreme Court justices and the ability of a Senate minority to force a super-majority vote to end debate on a bill, a procedure known as “cloture,” are long-standing practices that protect minority rights.
First, however, let’s define some terms.
According to the Senate’s official website, “the term filibuster, from a Dutch word meaning “pirate,” became popular in the United States during the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.” The Senate further notes that “using the filibuster to delay debate or block legislation has a long history.”
Under Senate rules, cloture is “the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.”
The problem with court packing — if that comes to pass – is that it would erode if not destroy a constitutional value — that of independent judicial review.
Ending the filibuster, on the other hand, which could be done by a simple majority vote to override the Senate rule, would reinstate a constitutional value — that of democratic self-government—that has been undermined by the intransigence of both major political parties.
When we do finally get rid of the filibuster, we will be completing a process of chipping away at it that began in 1917, with the first attempt to limit debate in the Senate by a cloture vote. The Senate tried 11 times between 1927 and 1962 to invoke cloture but failed each time, which demonstrates both how rare the use of the filibuster was and how absolute was its effectiveness.
In the 1970’s, the number of senators needed to invoke cloture was reduced from 66 to 60, and the budget reconciliation process was established. It could not be the subject of a filibuster.
As a result of the reconciliation process, the Republican tax cut of 2017 and the attempt to abolish the Affordable Care Act required only a Senate majority.
The Democrats ended the filibuster for presidential nominations, except for Supreme Court nominees, in 2013. The Republicans extended that abolition to Supreme Court nominees in the majority vote to confirm Neil Gorsuch in 2017.
Republicans say that they abolished the filibuster for Supreme Court nominees because the Democrats had earlier limited its use. But that is not true. The Republicans abolished the filibuster for the same reason the Democrats did—the opposition party was abusing it.
In 2013, 79 judicial nominations by President Barack Obama had been subject to Republican filibuster, compared to only 68 such judicial filibusters in all of previous American history. The Democrats, who were in the majority at that time, were right to limit the filibuster.
In 2017, there was nothing really unusual about the views or character of now-Justice Neil Gorsuch that justified the Democratic filibuster of his nomination. It was clear that Senate Democrats would have filibustered any Supreme Court nominee of President Donald Trump. The Republicans, who gained a majority in the Senate in 2014, were right to eliminate the filibuster.
For most of its existence, the filibuster was an intra-party expression opposition to fundamental change, invoked most often by Southern Democrats against civil rights legislation and opposed by a bipartisan Senate majority.
But today, the filibuster functions very differently—as a weapon by which one party can frustrate the legitimate effort of the majority party to govern. In effect, the filibuster today imposes a general 60-vote requirement to pass most legislation in the Senate.
This change in the nature of the filibuster has increased the dangerous frustration that the American people feel about government. For constitutional democracy to work, while the minority must be protected, the majority must be allowed to govern.
As Justice Hugo Black once wrote, “[T]he right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.”
It is instructive to see the healthy political consequences that have followed where the filibuster has already been abolished. In 2016, President Trump ran on a platform of adding conservative judges to the judiciary. Because of the abolition of the judicial filibuster, he did exactly that.
Then, in 2018, the voters effectively approved Trump’s actions by increasing the Senate Republican majority. This was democracy in action.
Similarly, the tax cut of 2017 was exactly the kind of ordinary legislation that should not have led to a filibuster. But there would have been a filibuster except for the invention of the budget reconciliation process in 1974. Because there could be no filibuster, the Republicans were free to enact their tax cut.
Today, many voters view the tax cut as an unfair failure. Voters who feel that way are now free to vote for the Democrats and reverse it. That is how democracy is supposed to work. But this is only possible because the filibuster had been eliminated.
Similarly, because Republicans arbitrarily added repeal of the Affordable Care Act to the budget reconciliation process, they were free from 2017 to 2019 to end Obamacare by simple majority vote. They failed to do so because they could not come up with a publicly acceptable alternative.
Because the filibuster had been eliminated, Republican claims about repeal were exposed to the voters.
What America needs today is effective government. Letting the voters decide on policy and then actually enacting it is the most obvious way to deal with the cynicism and anger in our political life. If we don’t like the policies that are enacted, we will then be free to change them.
Minority interests are already adequately protected by the checks and balances the Constitution created—the State structure of the Senate, which gives Montana the same political power as New York, the Electoral College, which perpetuates this advantage, and the bicameral structure of Congress, in which the parties will often control only one chamber of Congress.
And, if the majority does abuse its power, there is always the Supreme Court, which can block unconstitutional legislation.
That is why eliminating the filibuster is good for American political life while packing the Supreme Court is bad. Getting rid of the filibuster returns us to the Constitutional norm of majority rule with judicial protection for minority rights.
Packing the court destroys that constitutional balance by allowing the majority to rule without regard for the rights of the minority.
Only the worst kind of abuse by the court would justify such a radical act. It would not be justified by the court overturning controversial 5-4 precedents.
We need independent judicial review. We don’t need the filibuster. We need to get rid of it.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.