Senate Democrats must filibuster Neil Gorsuch’s nomination to the Supreme Court. Here’s why: First, it’s a stolen seat—Republicans kept it open for over a year without even holding hearings on Obama’s nominee. Second, letting a president whose legitimacy is in question take it without a fight would validate the GOP’s disdain for the norms have made our government functional. Third, the Democratic base is demanding it.
But most importantly, Democrats should block Gorsuch because they have nothing to lose but an undemocratic remnant of a bygone era known as the filibuster. And while the filibuster protects the minority, in the long run, it’s more likely to benefit Republicans than Democrats.
The hazard in blocking Gorsuch is that Senate Majority Leader Mitch McConnell vowed that he would kill the filibuster for Supreme Court nominees if Democrats go that route. He may or may not have the votes, but Democrats should call his bluff because making the Senate more democratic isn’t a bad thing.
Most people believe the filibuster was intended by the founders to slow the upper body’s deliberative process and give the minority more rights than it enjoys in the House. The classic formulation is that the House is supposed to be the legislature’s gas pedal, and the Senate is its brakes.
But Georgetown political scientist Sarah Binder says that none of that is true. Senators do enjoy longer terms than members of the House in part to insulate them from public passions, but the filibuster was born of an error—it was an unintended consequence of an 1805 effort by then–Vice President Aaron Burr, freshly indicted for killing Alexander Hamilton in a duel, to streamline the body’s rules. (It’s somewhat ironic given that the “reform” resulted in a legislative body that’s often unable to legislate.) And although that rule change made filibusters possible, the Senate mostly operated according to majority rule through the first half of the 19th century.
Since then, a number of attempts to get rid of the filibuster have gone nowhere. According to Binder, “Senate leaders tried and failed repeatedly over the course of the 19th and early 20th centuries” to reinstate majority rule, but “gave up their quest for reform when they saw that opponents would kill it by filibuster—putting the majority’s other priorities at risk.”
But in a rare bout of reform in 1917, the Senate finally enacted cloture, which allows a super-majority to cut off debate and end a filibuster—the origin of what’s often described as today’s “60-vote threshold.” (This means that lawmakers need not actually hold the floor reading from the phone book to filibuster like they do in the movies.) But it only became routine for legislation to require 60 votes in recent years. As the graphic from Talking Points Memo below shows, prior to the 1970s, filibusters were very rare—they typically numbered in the single digits in each Congress. Over the next three decades, their use increased, but they were still rare enough for the body to function. It was only in recent years that they’ve become routine, and made the “world’s greatest deliberative body” largely dysfunctional.