AS SENATE DEMOCRATS filibuster the nomination the Neil Gorsuch to the Supreme Court, Senate Republicans are preparing to invoke the "nuclear option" and allow the nominee to be confirmed by simple majority vote. The abolition of the filibuster for high court confirmations is being described in near-apocalyptic terms (a Washington Post story on the subject was illustrated with a mushroom cloud) and Senator John McCain said on Monday that the confrontation amounts to "the beginning of the end" of the Senate.
But the dysfunction in the Senate is anything but new. Republicans and Democrats are both to blame for poisoning the tradition of collegiality and compromise in which senators once took pride. Assuming Majority Leader Mitch McConnell and the Senate's Republicans carry out their threat to trigger the "nuclear option" this week, they will simply be topping off the damage done in 2013, when Democrats controlled the chamber and then-Majority Leader Harry Reid obliterated the filibuster for all presidential nominees except Supreme Court justices. Democrats said then that GOP obstructionism left them no choice; Republicans now say the same about Democrats.
Most voters don't seem to care whether the filibuster stays or goes. The Senate may once have been famous for its tradition of unencumbered debate, but that was back when the filibuster genuinely protected senators' right to speak on any issue for as long as necessary.Neither party has clean hands, and both speak with forked tongues. The Democratic filibuster of Gorsuch is an act of rank partisan intransigence. So was the Republican refusal to take up the nomination of Merrick Garland last year. In 2013, Democrats declared that there was no justification for requiring 60 votes in order to confirm presidential nominees. Today it is Republicans who insist that an artificial 60-vote threshold cannot be allowed to keep the Senate from filling a Supreme Court vacancy.
In 1939, when Jimmy Stewart portrayed an idealistic young senator in Frank Capra's film Mr. Smith Goes to Washington, the filibuster was a true check and balance on the unbridled power of a legislative majority to silence debate and have its way. It wasn't easy to sustain a filibuster, since it required the senator to remain in the chamber, standing on his feet and continuously speaking — or lose the floor, and see the issue brought to a vote. As long as a filibuster was underway, the Senate was blocked from moving on to other business. Filibusters were grueling ordeals. That explains why there were so few of them: only one per year, on average, before 1970.
But such "speaking" filibusters have all but vanished. In 1970, the Senate adopted a new policy under which senators had only to announce a filibuster on Bill X or Nominee Y in order to prevent that bill or nominee from being voted on. By unanimous consent, the Senate would agree to defer the issue in dispute, while other Senate business could proceed.
After 1970, the filibuster "entered the couch-potato world of virtual reality, where an actual speech is no longer required to block a vote," US Representative Tom McClintock observed in a recent speech. "Today the mere threat of a filibuster suffices to kill a bill. . . . The filibuster has been stripped of all the unpleasantness that discouraged its use and encouraged compromise and resolution." The filibuster's purpose has been completely flipped. What had been a parliamentary maneuver "designed to ensure debate," said McClintock, has "mutated into a procedure that prevents debate." The number of filibusters has consequently skyrocketed, and the Senate is now in near-permanent gridlock, incapable of deliberating on anything of importance.
Perhaps voters don't care about the fate of the current, cheapened, filibuster — but revert to the former rules, and that would change. Why not consider a compromise? Let Republicans agree not to end the 60-vote requirement to end debate, in exchange for a Democratic agreement to filibuster according to the old method: in person, on their feet, speaking continually. Once they tire and yield the floor — or once a bipartisan group of 60 senators agrees to move on — the Gorsuch nomination could be brought to a vote. Until then, the Senate would take up no other business.
That would get voters' attention. Americans would be reminded why the Senate used to be called the "world's greatest deliberative body." And maybe senators could begin to rediscover that debate and moderation are more effective than hyperpartisan warfare and threats to go nuclear.