Senate Majority Leader Mitch McConnell (R-KY) announced this weekend that the Senate would confirm Supreme Court nominee Judge Neil Gorsuch by Friday. He stated that it is up to the Democrats to determine whether they will filibuster Mr. Gorsuch’s nomination and thus require sixty percent vote to invoke cloture. If the remaining members of the Senate cannot muster the sixty votes, the Republicans will change the Senate rules to require a simple majority to cut off debate on nominations to the United States Supreme Court.
In doing so Mr. McConnell is missing a “teachable moment.”
The Constitution of the United States requires only a simple majority of senators to approve (advice and consent) nominations to the Supreme Court – not a super majority of sixty percent. Article II, Section 2 states:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The sixty percent requirement is part of a tradition – a rule – of the Senate designed to end debate if one or more senators elects to filibuster (another tradition and rule) an issue pending before the Senate. The filibuster, in its simplest form is a lengthy speech(es) on virtually anything for purposes of delaying or defeating consideration of legislation. So long as the filibuster lasts the subject legislation as well as all other business of the legislative body is stalled. Under Senate rules a filibuster can be ended by a “cloture” vote requiring a super-majority – under Senate rules that is a three-fifths vote. Absent a cloture vote the filibuster can continue until the proponents are exhausted – and once they are exhausted and cede the floor, the business of the Senate continues. But the Senate has grown soft, lazy and inarticulate. The idea of actually having to filibuster has given way to a rule that suggests that if any one senator threatens a filibuster then the burden shifts to the remaining members to demonstrate they have sixty votes for closure. No one has to break a sweat – just a threat. This is just another example of how Congress operates for the benefit of the members instead of for the citizens. And therein lies the teachable moment.
To the best of my knowledge the filibuster has been used only once in the twentieth and twenty-first centuries to block the nomination of a Supreme Court nominee -–and in that case it was a bipartisan action taken against Justice Abe Fortas as a result of his acceptance of speaking fees from private parties while a Supreme Court justice. That ethical lapse coupled with the disclosure that Mr. Fortas had accepted an annual lifetime retainer from Louis Wolfson finally forced Mr. Fortas to resign from the Supreme Court. The filibuster has never been used as a partisan weapon by either party. (Even with the controversy surrounding Supreme Court Justice Clarence Thomas the filibuster was never used and Mr. Thomas was approved by the narrow margin of 52-48 – short of the sixty percent requirement for cloture.)
Mr. McConnell should accept the threatened filibuster by Senate Minority Leader Chuck Schumer (D-NY) and then require Mr. Schumer and his allies to stand and deliver. Let them air their grievances about Mr. Gorsuch (there appears to be none other than that he was nominated by the Democrat-hated President Donald Trump.) Make sure that the television cameras are rolling and hope that the Democrats drone on for an extended period of time. Each evening at a press conference Mr. McConnell should detail the serious work of the Senate that is being delayed by the filibuster. Let it continue until enough Democrats are tired of being made fools of by Mr. Schumer and agree to end the debate and vote for cloture or Mr. Schumer and his allies simply give up and return debate to “regular order” at which time the vote on Mr. Gorsuch – requiring only the constitutionally mandated simple majority – proceeds.
The process will not last forever because there is another arcane rule of the Senate that limits the number of times that a member can speak on a pending issue to two. Currently there are forty-one Democrats who have said they will support the filibuster. Assuming that each can hold the floor for twenty-four hours (and not a one can) that would mean that the process could go on for eighty-four calendar days (but only one Senate day) at the most – that is the mathematical limit. Truth be known there are few if any that can hold the floor for more than eight hours (more likely four) and that includes Sen. Bernie Sanders (Socialist-VT) at his angry old man best and Sen. Elizabeth Warren (D-MA) at her finger-wagging fury best. The filibuster will likely run out of gas by the end of next week. (It is Mr. McConnell’s prerogative to keep the Senate in session continuously until Mr. Gorsuch is confirmed and it then constitutes a single Senate day.) Those not on the floor (Republican and Democrat alike) can carry on the normal committee work. The Senate hasn’t done anything constructive for eight years, it just as well provide us some entertainment.
So, why is this a teachable moment? First, it reminds us that a filibuster actually requires effort – the kind of effort put forth by the Roman senator Cato the Younger, the kind of effort put forth by Sen. John Calhoun (D-SC) and followed for nearly one hundred fifty years by members of the United State Senate. Secondly, it exposes the rationale of those protesting Mr. Gorsuch as petty politics rather than substantive concerns. Third it places the blame for delay of the other business of the Senate (including tax reform, healthcare reform, and immigration reform) solely on those who are protesting. And finally, it reminds the members of the Senate that the filibuster is a tool to be used sparingly rather than at the whim and caprice of those at the edges of their parties.
The Senate, having done nothing for an extended period, can at least provide us a teachable moment and highlight their abilities or the lack thereof by its self-important members. Mr. McConnell don’t blow up the filibuster just yet – make the Democrats demonstrate that they can actually maintain one. You will be rewarded for that choice by making the Democrats think twice before threatening the filibuster on every other thing that is on the Republican agenda this term.