Sen. Harry Reid, D-Nev., said on the Senate floor in 2005 that the filibuster is “part of the fabric of this institution we call the Senate.”
Thursday, Reid and his Democratic colleagues blew a nuclear-sized hole in that “fabric” when they voted to end the filibuster on most judicial nominations. The 60-vote limit for cloture still will apply to Supreme Court nominations and legislation.
Reid and Co. aren’t the first to hypocritically flip on the filibuster, and they likely won’t be the last. Senators’ principles on the rule usually depend on whether or not they are in the ruling majority party.
The filibuster is unique to the Senate — the House doesn’t have one — and exists as a chamber rule. It is not mentioned in the Constitution’s Article I, which establishes Congress. The document merely authorizes each house to “determine the Rules of its Proceedings.” The Senate’s first filibuster occurred in 1837.
Critics contend the tactic is obstructionist and anti-democratic — but that’s usually when their majoritarian aims are being stymied by a 41-vote minority. When the filibuster is on the other foot, it is viewed as a valuable check on a president and his majority party in the Senate trying to ram through “extremist” judges or legislation.
The roots of the current dispute go back at least to 2001, when Democrats in an evenly divided Senate blocked President Bush’s nominee of Miguel Estrada to an appellate court. When Republicans gained the majority after the 2002 elections, Democrats filibustered Estrada’s nomination seven times, until he finally withdrew his name in 2003.
By 2005, Republicans had had enough of Democratic obstructionism and threatened the “nuclear option” — voting to end the filibuster. Democrats responded that they would shut down all Senate business in retaliation. This brinkmanship was ended when a bipartisan group of senators known as the “Gang of 14” negotiated a compromise: Democrats would filibuster nominees only in “extraordinary circumstances,” and Republicans would not use the nuclear option.
That truce became moot when Democrats gained the majority after the 2008 elections. Now, though, they complain that Republicans are using filibusters in “unprecedented” amounts to block President Obama’s judicial nominations. Both parties slice and dice statistics to prove the other side is abusing the filibuster, but their spat boils down to either “You did it first” or “You did it worse.”
Bottom line, neither sees anything sacrosanct about the filibuster unless it can be used to suit their needs.
Which is why Reid’s move Thursday is not the death-knell for the republic nor the last word on the filibuster. It’s a political ploy meant to clear the path for President Obama’s judicial nominees before the 2014 elections. Eventually, though, Democrats will return to the minority, and you can bet they will again wrap themselves in the majesty of the filibuster should the majority Republicans threaten to finish the job of nuking it. Rinse and repeat.