Before I began blogging, I published occasional essays at my home site on various political issues. In one of them, I defended the use of the Senate filibuster to block certain judicial appointments.
Some people see the filibuster as a mere nuisance with very little purpose, but I consider it an accidental but important Constitutional safeguard. My 2005 essay explained it this way:
If it takes a supermajority to change the constitution, it should also take a supermajority to change those who interpret the constitution. Otherwise, you create a loophole in which one can change the effect of the Constitution by installing judges who interpret existing wording different ways (whether by more strict conservative readings or more liberal readings).
I think it is a design error in the Constitution that court appointment, especially the Supreme Court, but probably at all levels, does not require a supermajority to assure that the public is comfortable with who is doing the interpreting of so basic a document as the Constitution.
If the filibuster is the only way to assure that we have a supermajority agreement, then it's clumsy but should be allowed to run. By allowing a non-supermajority to crush a supermajority check, as in the so-called nuclear option, an important constitutional check on the presidential appointment power is lost.
—Kent Pitman (Wednesday, March 16, 2005)
On the Use of the Filibuster to Block Judicial Appointments
So I think the use of the filibuster to occasionally candidates for the Supreme Court is mostly a good thing.
And, by the way, I added the qualifier “mostly,” because it's the supermajority aspect of the filibuster I'm interested in. The part about making it hard to leave the Senate floor to go to get some food or sleep or to use the bathroom is just a little weird and I could do without that.
But, all of that being said, I would like to eliminate the Senate filibuster except for use in blocking Supreme Court appointments. (If there also exists a finite handful of other similar situations that I'm not aware of, we could rescue those as well, but I’d only want to do this in cases where having a supermajority could be argued to be critical to the integrity of the process.)
Ordinary legislation should require only a simple majority, not a supermajority. That wasn't what the framers intended. It's too high a bar. It makes the difficulty of passing of legislation tantamount to that of creating a Constitutional amendment. It keeps the party that won the election from doing the job it was elected to do.
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Comments
imagine for a moment the usa was a democracy: no elections. instead, a team of would-be administrators would offer to the public a plan to manage health care, for example. their plan would be selected by referendum, in competition with others. they would hold office to 'do' something, not ' be' something.
when the duke of york beat the duke of lancaster, because he got more arrows in the air and thereby became king, no one imagined he was there to satisfy his soldiers. america is at that level of evolution, though ballots have replaced arrows.
One man has the power of all. 'tis like he is an unelected king.
In no way should 41 have more power than 59. It's Un-American. I think a simple majority may be a bit too lax and could also suffer from abuse, but I recently saw a statistic that the filibuster has been used 139 times this year compared to only 39 last year.
The filibuster now seems to not only water down legislation, but also enhances the power of lobbyists since they need less Senators do hold up legislation.
I also think watering down the super majority would allow more wiggle room for certain politicians by allowing them to vote against certain bills without it harming them in their caucus or with their constituency back home.
R
By the way, I've suggested in another post that the President should not have the power to pick the Supreme Court justices anyway. And eliminating that power would make this a clean sweep eliminating the filibuster for everything.
What I think makes the Supreme Court special is that it is another branch. Very special controls need to be in place in order to safeguard who can get on that because it's so powerful and so hard to undo. It is really unlike the Cabinet, for example. In fact, it exists as a way of putting a check on the Cabinet.
You buying any of that?
Norwonk, I really gotta see that movie sometime.
perdidochas (and Norwonk, too): The physical embarrassment and tedium of doing it, and the shame of having it be the only thing in your quiver, is important, yes. Among other things, there are many responsibilities of a Senator so if he always has to be up gabbing, he won't be doing other things. And that, in turn, will tend to limit him by forcing at least a little thought about balancing priorities. The procedural option doesn't have that cost so, like email spam, is free to just do any time just because you can. Even the price of a postage stamp stops people from spamming not because one stamp is too expensive but because the cost adds up. The insurance companies use co-pays the same. And so it should be for the filibuster—at minimum some cost. But I'd just as soon get rid of it.