Exasperated Democrats Cut to the Chase

There was a universality to the reaction — in editorial pages, television interviews, web blogs, wherever — to the Democrats’ Senate move to end the 60-vote supermajority hurdle for the President’s executive and judicial branch appointments. Reactions could all be distilled to “they had to but they shouldn't have".

Republicans have used the filibuster to block almost all legislation and appointments of the Obama administration — part of the avowed strategy of Minority Leader Mitch McConnell, who said in a 2010 interview “the single most important thing we want to achieve is for President Obama to be a one-term president”. That didn’t quite work out, but blocking Obama’s objectives was the next best thing. Democrats used the same tactic during the Bush administration, although to much less degree.

A Senate vote ordinarily requires only a simple majority to carry (e.g. 51 to 49). A filibuster is declared to prevent that vote from occurring. The Constitution allows the Senate to make its own rules and the Senate rule called for 60 votes to end the filibuster and permit a regular vote on a bill or resolution to ogo forward. Meant for exceptional use, the filibuster gave the minority some power against the majority to halt a bill or appointment that it found overly objectionable. It originally required talking a bill to death on the Senate floor until the opposite side caved, but in recent times the mere threat of a filibuster was sufficient to cause the Senate to move on to the next item on its agenda.

Democrats finally voted the filibuster into extinction in desperation after Republicans had deployed it 82 times during Obama’s term versus 86 filibusters under all prior presidents.

When filibusters thwarted three successive Obama appointments to open seats on the U.S. Court of Appeals for the District of Columbia Circuit — the all-important court that hears most of the government’s own cases — the Democrats had enough. The point was reached where unprecedented obstruction had broken “the world’s greatest deliberative body” and they sent the filibuster to its place in history, 52 to 48.

Republicans vow revenge. “You’ll regret it” said Iowa’s Chuck Grassley. "It's a sad day in the history of the Senate," a Democratic "power grab", said McConnell to reporters. Finally acting on his prior threats, Majority Leader Harry Reid held that "the American people believe the Senate is broken, and I believe the American people are right," he said, adding: "It's time to get the Senate working again."

The punditry decided the Democrats were fully justified but then pedaled backward — sometimes in the same sentence — when they considered what lies ahead. “Democrats were fully justified in stripping Republicans of their right to filibuster President Obama’s nominees — yet they will come to deeply regret what they have done”, wrote Dana Milbank at The Washington Post. Mark Shields on the PBS NewsHour called it a mistake to scuttle the filibuster option against judicial appointments because unlike cabinet posts, which end when a president steps aside, judges are left in place long after a president is gone. Without having to get at least some votes from the opposition party, David Brooks on the same program predicted much more polarized choices. His concern is deeper: “the erosion of the institute of the Senate, what makes the Senate special. You are basically turning the Senate into the House... beginning the erosion of minority rights”.

In the same vein was Paul Kane at the Post lamenting the damage to a Senate that “for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world”.

The Wall Street Jiournal’s editorial page called it “Senate Rules for Radicals” and said “the great irony is that Democrats voted to end the practice of judicial filibusters that they pioneered when George W. Bush was president…Yet now that Republicans are returning the favor, Democrats are up in arms”. No mention that Republicans have returned the favor several times over.

Several commentators assumed that preservation of the 60-vote hurdle for Supreme Court nominees would soon topple along with the rest of judicial nominees. As our other article points out, control of the Senate may pass to Republicans next year if they can gain six seats. In retaliation, they could further dismantle the filibuster, eliminating it for legislation as well, and then join the 40-plus House votes to repeal Obamacare with a simple majority vote, leaving only the President standing alone to wield a veto.

The best commentary belonged to E.J.Dionne in the Post, tracing what he views as the long-term Republican campaign to control the judiciary. “This era’s conservatives will use any means at their disposal to win control of the courts” and that leaves little doubt that, if the Democrats hadn’t trimmed the filibuster rule, Republicans will do so the moment they regain the majority in the Senate. Considering their ongoing battle to use any means to bring down Obamacare, that’s hard to dispute.