The Senate vote Thursday to curb the use of filibuster against judicial nominees, over the objections of the Republican minority, can only be seen as a terrifying development. Why, next thing you know we could be deciding all sorts of things by majority vote.
The average American may think deciding things by majority vote is the basic idea of our democracy. But say something like that, and you risk getting a lecture on how America is not a democracy but a constitutional republic, and that the framers took care not to give too much power to the people, and that they invented all sorts of devices to keep them from running out of control.
Defenders portray the filibuster as an essential check on the passions of the mob. Columnist George Will defended it in 2010 by quoting Thomas Jefferson's belief that "great innovations should not be forced on slender majorities," and expressing doubt that "a filibuster ever prevented eventual enactment of anything significant that an American majority has desired, strongly and protractedly."
But Will, like today's Senate Republicans, has not always taken such a positive view. In 2003, when Democrats used it to keep the Republican Senate from confirming the Republican president's judicial nominees, he warned of dire consequences if "Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice."
He was alluding to something important there: The filibuster, which allows 41 senators to prevent a vote, is not part of the ingenious design of the framers. It is part of the Senate rules, which did not allow it until 1806.
As political scientist Sarah Binder of the liberal Brookings Institution has noted, that was not the product of a considered judgment but "the unintended consequence of an early change to Senate rules." Even so, "it took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837."
Those who defend the filibuster as an integral component of our system are reminiscent of the believer who distrusted modern translations of the Bible: "If the King James Version was good enough for Jesus, it's good enough for me."
There is something to be said for promoting deliberation by impeding action. But that's what the Constitution did, requiring legislation to gain the approval of the House, the Senate and the president. It also required judges to win not only the president's nomination but the approval of a majority of senators.
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