Fresh off the government shutdown,Republicans in the Senate are giving us …another shutdown. This time it’s in miniature: They’re threatening to filibuster one of President Obama’s nominees to the U.S. Court of Appeals—and Democrats are contemplating action to end the filibuster, for judicial nominees.
To which I say: Please, please, please. It’s time to end the filibuster. Let’s kill the damned thing.
Defenders of the filibuster these days cast it as a tool of limited government, another check and balance in a governmental structure full of them. But that’s nonsense. The Constitutional structure of our government already does plenty to limit itself, the checks and balances require two majorities—House and Senate—plus assent of the president and, often, the judicial branch to get anything major done.
The filibuster— which is not in the Constitution—isn’t really a tool of limited government. It’s anti-governance, which is different, and definitely anti-democratic. It’s a tool that empowers a single senator from, say, Alabama, to bring government to a halt so he or she can get what she want. It creates 100 petty tyrants, each holding the business of the people hostage to an individual agenda.
And as I’ve said repeatedly: Every bit of evidence we have suggests the Founders—whom Republicans supposedly love and revere and respect far better than you or I do—would have hated the filibuster. “We forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary,” Alexander Hamilton wrote, and, well, he was right.
Certainly, the current set of filibusters is irritating. Republicans want to keep Patricia Ann Millet off the D.C. Court of Appeals—unofficially, the second-highest court in the land—where she’d give Democrats a 5-4 majority on the panel. GOP members say they just don’t think the court has enough work to justify replacing a missing member, but Democrats note that the workload is about the same as when the Senate approved President George W. Bush's nominations to the court.
But the GOP can’t win a vote on the matter; they’d lose. So they’re filibustering … and not letting the vote happen at all.
If Millet’s nomination is successfully filibustered, one senator said, “the pressure on changing the rules would be almost insurmountable.” The filibuster would probably die. That would be awesome.
One inevitable problem. Once the filibuster is gone, it’s probably gone. Democrats won’t always run the Senate. Someday, they’ll want to impede and obstruct GOP action. That’s one reason Democrats haven’t done away with the filibuster before now: They’re keeping it in their back pocket.
But America would be better off without a filibuster. Or, short of that, America would be better off with filibuster reform that required senators to actually speechify before the Senate for hours on end in order to keep the filibuster going. (Currently, “filibuster” doesn’t require much more than a senator to say he or she will filibuster; we rarely get to the “Mr. Smith Goes to Washington” stage of things) Let’s fix the problem—and let government start to govern again.