Neil Gorsuch will be the next Justice to serve on the Supreme Court. This is no longer in doubt. The use of the filibuster to block the will of the majority of the Senate is dead. To some observers, this is a tragic commentary on our polarized politics. But the truth about the filibuster’s origin is that it has mainly been used as a tool of the minority to subvert the will of the majority.
The confirmation of Judge Neil Gorsuch as a Justice to the Supreme Court of the United States would not have been controversial in almost any other era. Judge Gorsuch has an impeccable record, and an exemplary rating from the American Bar Association. He has authored no inflammatory writings or penned any previous decisions that can properly be described as embarrassing or demonstrating a reason for his exclusion from the court. His nomination should have been a slam dunk. But these are not ordinary times.
Senate Minority Leader Charles Schumer of New York led the effort to filibuster the nomination of Judge Gorsuch. Gorsuch was filibustered not because of any real objection to his qualifications, as Schumer was part of the 97-0 vote that confirmed Gorsuch when he was appointed to his position on the Court of Appeals, but out of a spirit of spite and revenge. Democrats are angered by the Republican leadership’s decision to refuse to consider President Obama’s nomination of Judge Merrick Garland.
Republicans are certainly not without blame for the hyper partisanship in Washington. During the 110th Congress, the Democratic-controlled Senate set a record with 139 filibusters. Most of these filibusters were delaying tactics by Republicans to stall the policies of President Obama, including holding up 59 of his executive branch nominees and 17 judicial appointments. The point to take away is that on both sides of the aisle, Senators have exploited procedural oddities to deny majority will in the legislature. Democrats reacted to these actions with the so-called “nuclear option” to end the use of the filibuster in all confirmations, save Supreme Court nominations. That motion passed on November 11, 2013 by a vote of 52-48 in the Democratic-controlled Senate under Harry Reid, thus changing the Senate rules. The motion was opposed by all 45 Republicans, as well as three Democrats.
In retrospect, the move set a good precedent. Regardless of whether or not President Obama’s or President Trump’s nominees are the best-qualified choices according to some abstract notion of correctness, or whether they are above petty partisanship, elections are supposed to matter. The President is constitutionally entitled to appoint who he thinks best, along with the “Advice and consent” of the Senate. Neither Obama, nor Trump, hid their political beliefs in 2012 or 2016. The American people had a clear understanding of what each man stood for, and a majority of the nation decided that each man in his turn was best choice available to them to lead the nation, and the will of the nation should be respected by their representatives in the Senate.
With the Schumer-led filibuster of the Gorsuch nomination, the Republican leadership opted to take what the Democrats did in 2013 one step further and to end the use of the filibuster for Supreme Court nominees. Many Democrats with short memories are bemoaning this move as unjustified, extraordinary, and are accusing the Trump administration of subverting the Constitution. Nothing could be further from the truth.
Let’s first examine the filibuster’s origin. The filibuster is not in the Constitution. It was not the intention of the founders to create a filibuster to allow unlimited debate and deliberation in the Senate. Article 1, section 5 of the Constitution includes only two relevant provisions. It allows majority quorums to do business, and empowers each house of Congress to makes their own rules regarding their proceedings. The fact that the Senate and House can change their rules by simple majority was confirmed in the Supreme Court’s United States v. Ballin decision in 1892.
In fact, the filibuster owes its origins to one of the most unsavory characters in American history, Aaron Burr. The rules of the Senate in the 1st Congress allowed members to move to the previous question; essentially allowing each member the power to end debate in the chamber and move on. Burr, presiding over the Senate as Vice President in 1805 (shortly after his infamous killing of Alexander Hamilton in a duel), advocated in favor of eliminating that rule, which he regarded as unnecessary and redundant. The Senate then changed the rule during the following year in 1806. This rule change unintentionally created the filibuster by denying any individual Senator the ability to end debate. This allowed any Senator to hold the floor as long as he was willing and able.
We know the filibuster’s creation was unintentional, as it took more than 30 years for the minority to figure out how to use it as in the way we have come to recognize it as a tool at their disposal to delay passage of measures of which they disapprove. In 1837, Senate supporters of Andrew Jackson sought to have his censure for withdrawing federal funds from the Bank of the United States erased from the record. The Jacksonians held up debate until the opposition caved after midnight and allowed a vote. The motion then passed by a vote of 24-19, removing the censure. In 1841, we see the first organized effort to use the filibuster as a weapon to prevent consideration of a bill. Again, it was the Jacksonians who used the tool—in this case to stop a bill from Whig Senator, Henry Clay, to re-establish the National Bank. Clay eventually withdrew his bill. Shortly thereafter, in 1842, the House of Representatives changed their rules to limit debate, thus ending the filibuster in that chamber. From that point forward, it became a unique characteristic of the Senate.
In the popular consciousness, we cannot help but think about Jimmy Stewart’s portrayal of the heroic Senator Jefferson Smith railing against corruption in his filibuster during the climax of the classic 1939 film, Mr. Smith Goes to Washington. The reality of the filibuster, however, is much darker. Filibusters were used repeatedly by a minority of Southern Senators to hold up numerous bills, approved by majorities in the House and supported by majorities in the Senate, that were intended to protect the rights of minorities. Anti-lynching bills were denied a vote in the Senate by filibusters in 1922, 1935, and 1938. Anti-poll tax bills were defeated by filibuster in 1942, 1944, and 1946. South Carolina’s Strom Thurmond was the real-life Jefferson Smith, holding the Senate floor for 24 hours and 18 minutes; not to fight corruption, but to hold up the Civil Rights Act of 1957. Even the Civil Rights Act of 1964, which eventually passed was held up 57 days by a coalition of Southern Democrat Senators. There were a total of eleven times that bills seeking to stop racial discrimination were held up by filibuster between 1946 and 1975.
Since the Democratic leadership in the Senate insisted on using the filibuster to hold up the President’s indisputably qualified nominee for the Supreme Court, the time has finally come to end the filibuster in the Senate, at least as it applies to Court appointments. The end of this quirk of the Senate is no end to the great vision of the founders of the American Republic. It is no extraordinary move to subvert American democratic ideals. The filibuster, the bastard child of Aaron Burr and the favorite weapon of segregationists, has finally died its long-overdue death.