The U.S. Senate decision last week to allow presidential appointees to be approved by a simple majority was a waypoint on the path of history.
The Constitution specifies only a few cases when Congress must have more than a simple majority to take action. Appointees need only a simple majority. So the vote should have been routine.
But Congress adopts its own rules. When the Senate went to work in 1789, its rules allowed unlimited debate. There was full discussion, but it seldom prevented votes.
By 1917, endless debate blocked voting on World War I issues. Senate Democrats decided there had to be a way to bring “cloture” and ruled that debate could be cut off by a two-thirds majority.
Under the new rule, endless debate – filibustering – was confined to one or two bills a year. The former Confederate states had lost the Civil War, but their senators managed to block civil rights for African-Americans by using the filibuster.
By 1975, opposition to civil rights was crumbling, and Senate Democrats moved to make it easier to end debate, allowing debate to be ended by a vote of three-fifths of its members.
Both Republicans and Democrats used the filibuster to block the confirmation of presidential appointees.
One-time deals on appointees have been struck by the two parties, but they could not agree to change the Senate rules.
In recent years, the rate of filibusters has sharply increased. For one thing, it was no longer necessary for the minority, having blocked cloture, to continue the debate. Its filibuster threat was accepted in place of actually doing it.
The Republican Senate minority has resorted to using the filibuster threat hundreds of times to block legislation and to prevent President Obama from naming people to executive office or to the courts.
Endless debate had become a tool not to promote full and thoughtful discussion but with the open intent to introduce minority rule.
The Democrats threatened to use their majority to change the rule to allow decisions by a simple majority, but that change was thought to be so drastic that it was labeled “the nuclear option.”
In other words, majority rule in a democracy was considered to be as dangerous as a nuclear weapon.
Why? Because either party might find itself in the minority at any given moment, so it would want today’s minority to have the kind of filibuster protection that it might want later.
By last week, Republican senators had made it clear they would not approve any appointees to the federal appeals court in Washington, D.C., although it is authorized by law to have 11 judges, and there are only eight now on the bench.
The GOP had no serious objections to the three Obama appointees. But it feared that the ideological balance on the court could shift away from conservative domination by justices appointed by Republican presidents. It wanted the court reduced to the current eight judges.
The GOP was unwilling to wait until there was a Republican president and Senate to change the number of judges, assuming it would do so if it had control.
While the Constitution provides that the president appoints federal judges subject to the “advice and consent” of the Senate, it does not suggest that a Senate minority should legislate by blocking presidential appointments.
With the frequent use of the filibuster, the rule could prevent a presidential election from meaning much in the face of a determined Senate minority.
So the majority Democrats drew the line. They used their majority to rule that executive and judicial appointments below the Supreme Court should be subject only to a majority vote.
Maine’s two senators split their votes. Independent Angus King, who has softened his opposition to the filibuster, voted with the Democrats, saying “I am sorry it had to come to this.”
Moderate Republican Susan Collins showed she was more Republican than moderate. As a moderate, she supported the blocked confirmation of an Obama appointee to the D.C. court. But she joined with all other Republicans to oppose the change to majority rule that would have made that appointment possible.
Collins called the vote “a terrible mistake.” Presumably, she worried that future majorities could run wild, unchecked by the filibuster.
Perhaps a Senate run by a simple majority rather than by filibuster might do more to limit extreme legislation. The majority would know that after the next election, the other party could gain the votes to reverse its actions.
Inevitably, the Senate will someday allow majority rule to apply to all appointments and all bills. That’s the historical message of last week’s vote.