Killing the Filibuster Is the Only Way to Stop Decades of Republican Mischief-Making and Obstructionism

The law, lawyers, and the court.
Nov. 21 2013 6:58 PM

The Filibuster Had to Be Killed

How the Republican minority had turned it into an obscene weapon for obstructionism, delay, and political mischief.

Sen. Chuck Schumer (D-NY) looks on while Senate Majority Leader Harry Reid (D-NV) speaks.
Sen. Chuck Schumer, D-N.Y., looks on while Senate Majority Leader Harry Reid, D-Nev., speaks at a news conference on Capitol Hill on Nov. 21, 2013. You know the filibuster had to be killed if a traditionalist like Reid was the one who sounded the death knell.

Photo by Drew Angerer/Getty Images

I’m glad to hear that Sen. John McCain thinks the partial end of the filibuster passed today is a “devastating” breach of Senate procedure. The Senate rules need to be devastated.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

The filibuster is anti-democratic. It gives a minority of representatives from a minority of states a stranglehold over the country and in particular over the president’s power of appointment. The filibuster is not in the Constitution, barely existed before 1917, and didn’t take on anything like its current form until the middle of the 20th century. Only very recently has it become the monster it is now. It is past time for the filibuster to go, and damn the conventional wisdom about the consequences.

Until now, both parties have held off from killing the filibuster when they’ve controlled the presidency but not the Senate, because they’ve been mindful of what they stand to lose when they’re on the other side of the power divide. But the Democrats have been so much the losers in this that even Majority Leader Harry Reid, a defender of Senate tradition and gridlock if ever there was one, has admitted the truth born of the brute force of Republican obstructionism: He has no choice, which is why he pushed to end the filibuster for presidential appointees and non-Supreme Court judicial nominees. (The filibuster remains intact for Supreme Court nominations and regular laws.)

Advertisement

Take the D.C. Circuit—the federal court of appeals that is second to the Supreme Court in importance—as just one example of the Republicans’ advantage, since it’s the cause of the collision that finally sent the Democrats over the edge. Around 2005, after he won re-election, President George W. Bush succeeded in pushing through a slate of D.C. Circuit judges who included hard-core conservatives such as Thomas Griffith, Brett Kavanaugh, and Janice Rogers Brown. They have done all kinds of work for the right since then. Most recently, Brown came through with a ruling against Obamacare’s requirement that employers provide health insurance that covers contraception. As Bush lined up his nominees to the courts (not to mention federal agencies), the Democrats kept their promise only to filibuster selectively, based on “extraordinary circumstances.”

As a result, Bush was able to build a federal judiciary with an overwhelming majority of Republican-appointed judges. As Charlie Savage wrote in 2008 before Obama became president: “Republican-appointed judges, most of them conservatives, are projected to make up 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit.”

That’s pretty much how the presidential power of appointment is supposed to work. You win the White House, you control the courts, until the next time around, when it’s the other party’s turn to pick judges. But the Republicans in the Senate have indefatigably changed the game. They have appointed just one of Obama’s five nominees to the D.C. Circuit—Sri Srinivasan, the single golden compromise. Caitlin Halligan withdrew after more than a year of waiting and filibustering. Last summer, Obama announced three nominees at once—Patricia Millett, Robert Wilkins, and Cornelia Pillard. All hyper-qualified. None radical. One even worked in the Bush as well as the Clinton Solicitor General’s Office and has represented the pro-business behemoth that is the U.S. Chamber of Commerce. When Obama made his triple-nomination announcement, I figured that the president would go two for three. Or at least one for three. Right?

Wrong. The Republicans filibustered all three of Obama’s picks. Not because they were extraordinary nominees, but because they were nominees, period. The normal business of filling vacant seats on the D.C. Circuit became, in the heated rhetoric of Republican senators such as Chuck Grassley, nefarious “court packing.” Grassley said there was no need for more judges on that court because the workload was down. Never mind that he'd confirmed the Bush judges who at that point brought the total number of non-senior judges on the court to 11—exactly three more than there are now. The real reason for the Republican united front was simple math: The D.C. Circuit now has four judges appointed by Republicans and four judges appointed by Democrats, plus six senior judges, five of whom are Republican appointees. Fifteen of the 19 last picks have been made by GOP presidents. The senior judges hear plenty of cases. The appeals courts issue rulings in panels of three. And so, as Moshe Marvit pointed out in Dissent in May, the number that matters most is this: At that point in 2013, almost 80 percent of the D.C. Circuit panels were majority or exclusively Republican appointees.

That’s the Republican advantage. It’s been working well for them. They saw no reason to give it up. Why not keep pushing the filibuster envelope if no one makes you back off?

That’s why Reid finally pushed back. The fight for bipartisan normalcy has already been lost. The majority leader merely sounded the death knell. There will be lots of loud lamenting at the wake that follows. Don’t be fooled. If the Republicans were in the Democrats’ position, they’d have done the same thing months ago. Now Millett, Wilkins, and Pillard can take their seats on the bench. And soon the funeral speeches will end, and the next phase of life in the Senate will begin.

Listen to this Gabfest Extra on the Senate’s "nuclear option.”

TODAY IN SLATE

Foreigners

The World’s Politest Protesters

The Occupy Central demonstrators are courteous. That’s actually what makes them so dangerous.

The Religious Right Is Not Happy With Republicans  

The XX Factor
Oct. 1 2014 4:58 PM The Religious Right Is Not Happy With Republicans  

The Feds Have Declared War on Encryption—and the New Privacy Measures From Apple and Google

The One Fact About Ebola That Should Calm You

It spreads slowly.

These “Dark” Lego Masterpieces Are Delightful and Evocative

Crime

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

Politics

Talking White

Black people’s disdain for “proper English” and academic achievement is a myth.

Activists Are Trying to Save an Iranian Woman Sentenced to Death for Killing Her Alleged Rapist

Piper Kerman on Why She Dressed Like a Hitchcock Heroine for Her Prison Sentencing

  News & Politics
Politics
Oct. 1 2014 7:26 PM Talking White Black people’s disdain for “proper English” and academic achievement is a myth.
  Business
Moneybox
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
  Life
Outward
Oct. 1 2014 6:02 PM Facebook Relaxes Its “Real Name” Policy; Drag Queens Celebrate
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Brow Beat
Oct. 1 2014 9:39 PM Tom Cruise Dies Over and Over Again in This Edge of Tomorrow Supercut
  Technology
Future Tense
Oct. 1 2014 6:59 PM EU’s Next Digital Commissioner Thinks Keeping Nude Celeb Photos in the Cloud Is “Stupid”
  Health & Science
Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?