Posted by: Patrick Allen Foster | November 21, 2013

The Filibuster and the Nuclear Option: the Democrats Finally Pull the Trigger

Earlier today, the US Senate voted to eliminate the 60-vote supermajority threshhold for cloture on confirmation votes for most executive branch appointments, including Cabinet secretaries, and for district court judges and appellate court judges. The vote was 52-48, with three Democratic senators joining the 45 Republicans in the minority.

The change to Senate Rules apparently does not affect confirmation votes for Supreme Court nominees.

Among other things, this should allow the Obama Administration to get up-or-down confirmation votes for three pending judicial nominees to the DC Circuit Court of Appeals.

This is a big deal. This is a big day. Politicians, pundits, and political junkies have been talking about the nuclear option since 2003. This has been a long time coming. (The Washington Post has this helpful, if incomplete, timeline.)

The Left is predictably thrilled. I am not of the Left, but I also believe that this change is for the best, going forward. I happen to agree with Jonathan Adler and others that all judicial nominees deserve a reasonably prompt up-or-down vote by the full Senate. This is true regardless of who is president or which party happens to control the Senate. I believed this back in 2005, when Bush was president, and I believe it now. The Constitution provides specific instances for when a supermajority is required (say, for Amendments to said same Constitution), and the Senate’s advise-and-consent function is not one of those instances.

In the coming day or so, we will hear and read many words about how this is a blow to the traditions of the Senate, a sign of decadence, a symptom of partisan acrimony, a shameful development, a “power grab.” Almost all of this blabbering will be nonsense and balderdash.

The Senate will survive. In fact, the US Senate will remain one of the strongest upper chambers in any national system of government in the world — stronger than the Rajya Sabha in India, stronger than the Seanad in Ireland, and much stronger than the British House of Lords. Off the top of my head, the only upper chamber of a national legislative body with institutional powers comparable to the US Senate is the Council of States in Switzerland.

By the way, where was Joe Biden during all of this? The president pro tem, Sen. Leahy, was presiding when this historic vote took place. Lest we forget, the Vice President of the United States is, technically, the President of the Senate. I understand that probably 96% of the Senate business has got to be as boring as watching paint dry, and the Vice President has other responsibilities (I assume), so I get why the president pro tem and other temporary presiding officers are in the big chair most of the time. Still, I would think that the VP would want to be there for the big events, like this one. (The situation is a bit different, but I think that Al Gore was never quite so happy during his vice presidency as when he was at the front of the Senate chamber casting a tie-breaking vote.) Biden’s absence seems odd to me.

Anyway, this is a good thing in the long run. The Senate will be OK. The Constitution will be OK. The Republic will be OK. Today is a good day.


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