One Man’s Opinion: Why We Need the Filibuster

The framers intended for our U.S. Constitution to be the upper chamber and more deliberative body.  Until the 17th amendment was ratified in 1913, the two Senators from each state were appointed, either by their legislature or Governor and not popularly elected.  I would not turn that clock back, but on some more recent changes in Senate rules, I think some permanent harm has been done.

With the occasional exception, prior to the confirmation hearings of Justice Clarence Thomas in 1991, it was not unusual to see U.S. Supreme Court nominees receive confirmation votes of 70, 80, or even 90 votes in favor, regardless of the party in power and political leanings of the nominee.

It was also more customary when the vote threshold for successful confirmation was higher than the current simple majority (51 Senators) to see nominations withdrawn when it became clear that any prospective nominee could not engender the support of a clear majority of the bi-partisan Senate Judiciary Committee or the Senate floor.  This tended to bring about the confirmation of more centrist and apolitical judges on our highest court.

During 2013, and early in the second term of President Barack Obama, then-Senate Majority Leader Harry Reid, a Democrat from Nevada, led efforts to abolish the filibuster for the U.S. Senate confirmation of Presidential Cabinet nominees and federal judges, to a simple majority of half the Senate, plus one.  That threshold had been 60-votes by Senate rules.

Early in his first term, President Obama had a bullet-proof 60-vote plus majority in the U.S. Senate, as well as an overwhelming majority in the U.S. House.  During the devastating mid-term elections of 2010, in what was seen somewhat as a referendum on the Affordable Care Act, Obama, and the Democratic Party lost their majorities in the U.S. House and Senate.

Senator Reid was frustrated by Republican Senators then bottling up Obama Cabinet nominees with filibusters during his second term, so he lowered the vote and debate threshold on all Cabinet nominees and federal judicial appointments to 51 votes, with the intention of putting several Progressives eventually on the U.S. Supreme Court as well as filling the President’s Cabinet and sub-cabinet appointments during his second term.

Obama would famously leave hundreds of federal judicial posts open, all to later be filled by a Republican U.S. Senate Majority Leader Mitch McConnell (R-Kentucky) when the Majority changed, and now with that much lower confirmation vote threshold.  Three Supreme Court Justices anyone?

Unlike the U.S. House of Representatives which often proposes legislation based on the latest headline or public opinion poll, the U.S. Senate is intended to have more senior statesmen and women, often with lengthy prior elective office experience, service in the U.S. House, back in their home state or in the Executive Branch.

As stated here previously, I am pro-choice.  I am not a woman, and I cannot entirely appreciate the feelings I might have if any government entity told me what I can or cannot do with my own body, but the recent decision by the Supremes did not end, nor make abortion illegal, however, it did return regulation and that authority over reproductive rights and fetal life to the states.

It was a 6/3 Republican majority appointed U.S. Supreme Court that in 1973 delivered the decision creating the precedent of Roe v. Wade by a vote of 7/2.  In the lesser-known Casey v. Planned Parenthood case in 1992, there was no majority opinion, but the plurality of the court, again led by three GOP-appointed justices, maintained several key elements of Roe, while also allowing states the right to prescribe some limits and regulations on abortions during second and third trimesters.

A majority of our states currently have a majority of GOP Governors and at least one chamber of their legislature, or both, operating with GOP majorities.  Other than Constitutional amendments, most state legislatures operate on the rules of a simple majority.  Several states have a one-body, unicameral legislature.  Want to propose a new law, on ANY topic, secure the support of half your chamber, plus one, and then repeat on the other side.  Bill moves to your Governor’s desk for signature.   Yes, passing a law is a bit more complicated than that, but without procedural breaks LIKE THE FILIBUSTER, we have a truly simple majority, and in some cases MOB Rule.

As with safe driving, a more regular application of the brakes than the accelerator is quite often a VERY good thing.  Think of the filibuster as those brakes.




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