Dear America,
All of this nostalgic puling about the exercise of the pretentiously named "nuclear option" eliminating the filibuster on Supreme Court nominees is nothing but the hand-wringing of a bunch of modern Hamiltonians who think they are not just politicians, but special guardians of the democracy. It is nothing but hogwash. This filibuster that Democrats, especially Democrats, see as emblematic of senatorial comity and sage deliberation has never been used as far as I can ascertain...not even when Samuel Alito and Clarence Thomas were being considered. Further, there has never been a case in which a president has put a nominee before The Senate for consideration for whom The Senate never took a vote except when the nominee was withdrawn or was withdrawn and then confirmed for the higher office of Chief Justice...except one: Merrick Garland. And the Republicans did that. There has also never been a filibuster of a Supreme Court nominee even though there have been nominees confirmed with less than 60 votes, the number required to end a filibuster. Both Alito--a doctrinaire conservative more intractable than Scalia was--and Thomas--also a doctrinaire conservative, but such a "deep thinker" that the number of questions he has asked from the bench could be counted on one hand...one finger if I recall correctly--were confirmed by less than sixty votes, and it is certain that the Democrats didn't want either of them on the Supreme Court for life. Yet, though both men theoretically could have been filibustered to prevent their ascensions to The Court, neither was, and thus, the exercise of repealing the filibuster for Supreme Court nominees begs the question without addressing it. The question is this: what good is the right to filibuster a nominee if it never gets used, and who gives a damn if it goes the way of all things. To date, only the Republicans have used any procedural tactic of any kind to prevent a nominee from getting a vote, and they did it with Merrick Garland, President Obama's last nominee. In effect then, the only use of what could be compared to a filibuster was exercised by the Republicans, and their denial that that was what it was is a hollow prevarication. So, since only the Republicans are willing to stoop to that level, that is the level of preventing a nominee from ever being considered by the full Senate, the Democrats have nothing to lose by doing away with the filibuster, which they never had the audacity to use.
The talk about the woefulness of the loss of the filibuster is based on the premise that its existence has fostered moderation in the nominating process on the theory that presidents take into consideration the erstwhile fact that the minority party could block the nomination by preventing a vote using the filibuster provision of Senate rules. But that didn't stop George W. Bush from nominating Samuel Alito, and it didn't stop George H.W. Bush from nominating Clarence Thomas, and the Democrats did nothing about either nomination even though the filibuster was available to them. In short, the filibuster wasn't the "big stick" that today's senators want to believe it was. It's been a paper tiger, if you'll excuse the mixed metaphor, all along. Good riddance. Now, every Senator has to cast his vote in the open, and that means that they all have to take the nominees they put on the big bench as part of their legacies. That's the deterrent to making dogmatic partisan decisions. Those decisions will be recognized...and used politically by opponents. That's a threat that matters.
Since the filibuster couldn't be used to keep Alito and Thomas off The Court, it wasn't useful for anything at all. Thus, my only objection to the end of the filibuster on Supreme Court nominees is that it didn't go far enough. There should be no filibuster for legislation either. If The Senate is an apt institution in a democratic government, the majority should always rule, and the voters, knowing that they will have to live with the decisions of the individuals as well as the party they vote for, may then exercise the kind of discretion that a democracy demands of its citizens: prudence, foresight, egalitarianism, secular humanism and probity. So far, consideration of those qualities has been woefully lacking in too many instances to enumerate. Without the filibuster on legislation, we as a people might do better, and thus be better.
It's time that some of the conceit of Senators be called what it is. The Senate is not that bastion of mature collegiality that its members want the rest of us to believe it is. It is as petty, mean spirited and self-serving as the House of Representatives is. That conceit was spawned by the recently resurrected colonial hero, Alexander Hamilton, in papers numbered 62 and 63 of The Federalist. In those documents, Hamilton ( it could have been James Madison as far as historians can tell, but they sound more like Hamilton to me) justified the fact that Senators would be chosen by state legislatures rather than the electorate at large because those legislators would be imbued with substance and standing in the community by dint of their maturity and accomplishments, and therefore would have better judgment than the masses. In other words, wealthy landowners would choose senators, not the rabble. So The Senate was always intended to be inculcated with the paternalism that wealthy men, and men in particular, know best. As to the filibuster, they have finally demonstrated that at least in that regard, that may be for the best.
Your friend,
Mike
Leave a comment