Senator Mitch McConnell’s action today to use the nuclear option to end cloture for Supreme Court nominees will go down in history as one of the worst decisions in Senate history.
While most of us might have found filibusters to be a tactic of those who are in a minority position in the United States Senate to be something that has outlasted its usefulness, one must consider the origins of the filibuster and how it has been used in recent history before deciding on whether getting rid of the filibuster is a good thing or whether the long term consequences will be horrible for what may happen in the future.
Let us trace the origins of debate in the Senate. In the first years of our history, there was no limit on debate. You could speak on an issue for as long as you could stand.
Then in 1917 the Senate changed their rules, with what was called rule 22 to establish an end of debate by using what is called cloture, which required that the Senate have a super majority vote of 2/3 to end debate. This was then later changed to by the Byrd Amendment to make cloture require a vote of 60 to end debate.
For years a filibuster was rarely used and it was used by the Senate to allow the members to speak to measures that were by and large a minority position. The filibuster was thought to be used to protect the rights of the minority and eliminate or lessen the possibility of a tyranny of a majority to take place.
Then came the years of the Presidency of Barrack Obama, whereupon it became the position of Senator Mitch McConnell to use the filibuster not to protect the rights of the minority but instead it was used as a tactic to require a super majority on just about everything that was put forward by the new president. It was a use of a parliamentary procedure that was used as a delaying or obstructionist tactic. The use of the Filibuster became the norm rather than a rarity. It was simply a use of obstructionism in its most basic form.
Now today, because the only thing that matters to Senator McConnell is winning, the senate voted to get rid of the filibuster for Supreme Court nominees.
In one sense, McConnell has made the Senate no different from the House of Representatives except for the length of their term in office. What for all of these years made the Senate different was the fact that it was considered the most deliberative body in the world. And why was that because they had the rule that allowed for limitless debate for many years and then they allowed for an end of debate by requiring that the standard of consensus be used with a vote of 60 members on a particular vote or on a particular nominee. In this case 60 votes would have been needed to confirm this nominee for the Supreme Court. Mitch McConnell did not have 60 votes. There would be no victory for the nominee without using the nuclear option.
For all intent and purposes our form of government is becoming more and more like a parliamentary system or in its most negatively looked at view, more and more like a dictatorship.
If we look at our legislature in its current form in the most positive light, when you have a majority in each legislative body, you can ram through any bit of legislation you want to if you have a majority of the vote without having to worry about any delay due to a filibuster or by requiring a super majority.
Some may say that this is only for Supreme Court nominees! But the thought comes to mind that Senator McConnell may get it into his head that eliminating filibusters entirely might make life a lot easier for the Republican majority. But the worm can turn and Democrats may hold a similar majority some day in each branch of the legislature and be able to have their way.
Who loses in these situations? It is the minority position that is held in each situation that is sacrificed for the sake of having a win at any cost. The founders worried that the rights of the minority would be at risk by having a tyranny of the majority. What Senator Mitch McConnell has done is to have us arrive at a time and place where we wind up having a tyranny of the majority. Is this not therefore an act that could well bring us closer to having a dictatorship? Is winning a vote worth it? What has been done by Senator McConnell will go down in history as being one of the darkest moments in Senate History, and a black mark on what used to be a Representative government.