Much anguish has surrounded the Senate vote to confirm Neil Gorsuch as a new Supreme Court justice. Democrats denied the ruling Republicans enough votes to cut off debate. The Republicans were faced with the need to lower the 60-vote debate-ending requirement to a simple majority. By themselves, they have the votes for that.
One Republican senator said that Alexander Hamilton would roll in his grave if he knew that it was becoming easier to end debate on Supreme Court appointments. That’s not true.
The Constitution specifies a few times when a Senate vote by more than a simple majority is required. Confirming people to any federal office is not one of those situations.
A “filibuster” is endless debate. “Cloture” is the vote the end a filibuster, cutting off debate.
Blocking a majority vote by use of the filibuster rule was not foreseen when the Constitution was written. Changing Senate rules to require more than a simple majority for cloture changes the constitutional intent.
From 1789 until 1917, there was no way to break a filibuster. A way to end debate was needed, so first two-thirds and later 60 percent of the senators was required for cloture. The real filibuster talk-a-thon was used only once a year by southern senators opposing a civil rights bill.
In recent years, the Republicans began using cloture for virtually all bills. When in the minority, they could block any legislation by simply denying a 60-vote majority to end debate. A few years ago, the Democrats, then in control, eliminated the supermajority for many of President Obama’s appointments that otherwise were stymied.
Obama was able to get many court vacancies filled, because the GOP could no longer block them. But the filibuster rule was left in place for the Supreme Court.
Without a supermajority requirement, which gives the minority the power to block majority rule, the party controlling the Senate can do whatever it wants. As voters, the people are supposed to be worried about majority rule even if the Founders of the country were not.
Political writers and senators have been anguished over the end of the supermajority for confirming Supreme Court nominees. They prefer the unconstitutional requirement of a special vote. They lose sight entirely of whether the filibuster is wrong and focus more on how its loss might affect their political interests.
The filibuster is a way the Senate can ignore the voters’ decision in an election. The voters picked President Trump, so he gets to make the appointments with the help of the Republican Senate. Should the Democrats be able to block them because they can prevent a supermajority?
It’s possible that, without the supermajority, voters would be more aware that they were choosing not only the president but also judges. Right now, judicial appointments get little attention.
Senate Republicans have been claiming the Democrats are trying to change the system, while GOP senators are guiltless defenders of the proper way of conducting Senate business. But their hands are stained by their own past action, which has stimulated the Democratic response.
Obama nominated Merrick Garland to the Supreme Court, a judge every bit as solid as Gorsuch, to fill a vacancy. Controlling the Senate, the Republicans refused to even talk with Garland, much less give him a public hearing.
The GOP senators claimed that, because Obama was in the last year of his term, the appointment should wait until after the elections, That approach has never been used in American history. A president is elected for a full four years and ought to be able to make nominations that are carefully considered, even in the last year of the term.
The Democrats approved a fourth-year nominee of GOP President Reagan. But last year, the Republicans would not even consider – or talk to – Obama’s pick. After the normal hearings, they could have voted against him. They could have even used the filibuster rule to prevent his confirmation.
We also hear that ending the supermajority for appointments will change the American political system “forever.” But, in American history, we have had periods with no cloture, a two-thirds requirement, a 60-vote requirement and, now, the 60-vote rule for only certain matters. That certainly does not suggest that changes last forever.
What some supermajority supporters really mean is that it pastes a patch over the deep divide between the parties in Washington. Without it, partisan warfare will only get worse.
Just how much worse does it have to get? This unconstitutional patch is really a fig leaf over a crisis of partisanship that must come to an end.