The Democratically controlled Senate voted Nov. 21 to eliminate the filibuster against most presidential nominees. It’s about time.
The filibuster is the product of Senate rules approved by senators. It is not ensconced in law or the Constitution; it’s essentially a privilege extended to the minority by the majority.
The party in charge can, at any time, change the chamber’s rules with a simple majority vote. In fact, both parties have threatened to end or diminish the filibuster off and on for most of the past decade but, until now, have backed off from doing so.
One of the reasons is fear of retribution. Elections can can change a party’s fortunes, and once the other party is in charge, its leaders can change the rules too.
Another reason the filibuster had remained intact is tradition. The filibuster has been allowed for most of the nation’s history, though it was rarely invoked in early years and far less frequently during most of the 20th century.
Senate Majority Leader Harry Reid, who calls himself a parliamentary traditionalist, has been reluctant to limit the use of the filibuster. When the 52-48 vote to change the rules was tallied, Reid said, “This is not a time for celebration.”
A number of fellow Democrats who have been around long enough to see the majority shift back and forth between the two parties were equally reluctant to make the changes. For example, California’s two Democratic senators, Dianne Feinstein and Barbara Boxer, had opposed any change in the rules.
But both voted for Reid’s proposal to limit the use of the filibuster. Why? As noted, the filibuster is a privilege, and it’s one Republicans have severely abused in recent years.
The figures speak for themselves. According to Politifact, in all of U.S. history, 147 cloture motions (motions that require a supermajority vote to end debate and take a vote) were filed on presidential nominations. Of the total, 79, more than half, have occurred so far during the administration of Barack Obama.
Since 1967, 67 cloture motions have been filed on judicial nominees. Of the total, 31 occurred during Obama’s time in office.
In most cases, the blocking of Obama’s nominees had little or nothing to do with questions about the nominees’ qualifications, as even many Republicans will concede. The tactic was merely used to obstruct the president from filling seats on the court, as he is constitutionally mandated to do, and from filling openings in a variety of commissions and government agencies.
A good example is the blocking of Obama’s nominees to the three open seats on the U.S. Court of Appeals for the District of Columbia Circuit, the most important appeals court short of the Supreme Court. The court has 11 seats, but with the three vacancies, only eight are filled. Four of those judges are Democratic appointees and four are Republican appointees.
Rather than disturb that political balance, Republicans in the Senate have simply blocked Obama’s nominees, saying, in effect, they would allow the president no more appointments to that court. And that is the behavior that prompted Reid to act.
The rules change was enough of a departure from Senate tradition to be labeled the “nuclear option.” But it doesn’t affect all filibusters.
Using a parliamentary maneuver, Reid got the votes to end the minority’s right to filibuster in all but extraordinary circumstances for executive-branch nominations and judicial nominations, but not those for the Supreme Court. The limitation also does not apply to filibusters on legislation.
It is unfortunate that the change was necessary. But the obstructionists brought it on themselves.