President Donald Trump’s nomination of Judge Neil Gorsuch to the Supreme Court almost certainly will lead to his swearing in as the ninth member of that tribunal by the end of April. With any luck, it will lead to an even more important reform: elimination of the Senate filibuster.
The Senate filibuster is the modern descendant of the Senate’s one-time tradition of unlimited debate. Unlike in the far larger House of Representatives, where every speech is of limited duration, a senator who has the floor can keep it until overcome by exhaustion or an irresistible call of nature. (Once upon a time, even that was no obstacle: a senator could take a bucket onto the floor with him.)
Nowadays, however, it has essentially nothing to do with debate. Instead, a “filibuster” is just a 41-vote Senate minority’s mechanism for preventing a vote on an issue it wants to prevent the majority from deciding.
That’s right: a minority can prevent the Senate from making a decision. For example, Senate Democrats could, under the current rules, prevent the Gorsuch nomination from ever coming to a vote.
Yes, technically, there are a couple of ways around this kind of impasse, but they would involve the Senate in months-long dilatory measures if the minority wanted them to. Because the Senate has voluminous pending business, the majority cannot afford to endure such stalling tactics.
From a theoretical point of view, in the context of a republican government, this kind of situation is intolerable. Not only has the form swallowed the substance, with “filibusters” bedeviling Senate majorities long since unlimited debate was actually the issue, but Senate Minority Leader Chuck Schumer, D-N.Y., seems intent on using this faux filibuster in a context in which it has never been used before: a perfectly partisan attempt to prevent the Senate from voting on a Supreme Court nomination. This would be a minority veto, plain and simple.
Minority veto is contrary to our republican tradition, in which each branch is governed by a majority.
The Constitution establishes numerous different types of majorities. Each of them controls its own institution. Thus, for example, the House of Representatives is composed of members elected from a number of districts assigned to their respective states according to a decennial census.
The Constitution contemplates that the House will elect its own speaker. Its authors did not envision political parties, but soon after the Constitution’s implementation, speakers began to be chosen by the majority party in the House.
Speaker Paul Ryan, like many speakers before him, chooses committee members from his party. His Democratic opposite number, Minority Leader Nancy Pelosi, assigns members of her caucus to each committee. The number of seats each party has on a given committee is in the control of the majority party too.
The Senate is structured much differently. The difference dates to the Framing of the Constitution.
In the Philadelphia Convention, men like Delaware’s John Dickinson told delegates from populous states that the small states would reject any proposal that deprived the small states of equality in Congress. Each state had one vote in the Confederation Congress, and Dickinson and others said they would prefer a breakup of the Union to population apportionment. This is the basis of the two-senators-per-state apportionment of the Upper House.
That protection for small states, uniquely among the Constitution’s provisions, cannot be taken away from a small state by amendment unless that state agrees. We may guess that none ever will. Still, the Constitution establishes majority control of the Senate.
State equality in the Senate radiated through other portions of the Constitution. So, each state’s representation in the Electoral College equals its number of representatives plus its numbers of senators. That means small states have greater shares of the Electoral College than they would have under a bare population apportionment rule.
Because Senate apportionment ignores population differences and the president is chosen by an Electoral College in which state equality plays a role, the Constitution’s provision that all high-level appointed officials are chosen by the president with the advice and consent of the Senate means that the composition of the Senate has its role there, too.
Yet, although states are represented in the Senate as states rather than according to population, it is majorities thus configured that rule, just as majorities rule in the House and the Electoral College. The Constitution provides that the Senate can make its own rules. The Republican majority can get rid of the filibuster, an artifact of a former Senate age, by majority vote.
Americans commonly complain that their federal government is dysfunctional. The less attentive among us think that all congressmen are equally to blame for Congress’s failure to adopt popular policies.
Abolishing the filibuster would clear up confusion about responsibility for Congress’s policy decisions. The duty to govern would fall upon the majority, as it should.
Kevin Gutzman is Professor and Chairman in the Department of History at Western Connecticut State University and author of “Thomas Jefferson--Revolutionary: A Radical's Struggle to Remake America.”