6 April 2017
The filibuster is an affront to the Constitution and democracy
The U.S. Senate today changed its rules to allow debate on a nomination to the U.S. Supreme Court to be closed by a simple majority. Judge Neil Gorsuch will be confirmed as a justice of the court later this week.
Some Democrats are crying foul, but they have no case. The U.S. Constitution requires a supermajority in only seven situations, and confirming a nomination to the Supreme Court is not one of them.
In 2010, I wrote the following:
Whereas: the current requirement for a 60-vote supermajority to invoke cloture in the U.S. Senate allows as few as 41 Senators, potentially representing as little as 11.3 percent of the total U.S. population, to block a vote on legislation; and
Whereas: the Senate’s requirement for a supermajority to close debate prevents the passage of legislation for which there is the support of a simple majority (one-half plus one) of Senators; and
Whereas: the Constitution of the United States requires Congressional supermajorities in only seven situations (override of a Presidential veto; ratification of treaties; conviction of impeached officials; expulsion of members; proposal of Constitutional amendments; remove disabilities to serve as per the 14th Amendment; determine as per the 25th Amendment that the President is unable to discharge the powers and duties of his office); and
Whereas: the Constitution expressly empowers the Vice President, in his capacity as the presiding officer of the Senate, to cast the tie-breaking vote whenever the chamber is equally divided, a provision from which we can infer that a only simple majority is needed to make decisions unless the Constitution explicitly requires otherwise; and
Whereas: the Constitution can be amended only by meeting the requirements set forth in Article V, and therefore cannot be amended by the operating rules of the Senate or House of Representatives;
Therefore, it is clear from the black letter language of the Constitution that the Senate’s filibuster is unconstitutional.
The filibuster perverts democracy. So does the representational scheme for the Senate, but that’s a discussion for another day.
Democrats who want to avoid more right wing justices on the court must do two things: (1) pray that Breyer, Ginsberg, and Kennedy, stay healthy and on the court until a Democrat is elected President, and (2) learn how to win majorities in the U.S. House and Senate.