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Goodbye Judicial Filibuster—and Good Riddance

The Senate is a slightly more majoritarian chamber than it was a week ago, moving in the direction of being more representative of the people it serves.
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In front of the Supreme Court on March 29th, 2017. (Photo: Alex Wong/Getty Images)

In front of the Supreme Court on March 29th, 2017. (Photo: Alex Wong/Getty Images)

The demise of the filibuster for judicial appointments has brought all manner of depressing descriptions from observers and members of the United States Senate. It was a “dark day” for the Senate, lamented John McCain. His colleague Lindsey Graham warned, “This is going to haunt the Senate.” “The Senate won’t be the same Senate anymore,” said Chris Cilizza, adding, “Gone — or at least badly damaged — will be the idea that the Senate is fundamentally different in its operations than the House.” The fact that this parliamentary maneuver was known as the “nuclear option” was telling. Why would anyone even want to be a senator anymore?

Let’s ease off on the histrionics a bit, shall we? For one thing, there are still plenty of things that make the Senate different from the House of Representatives and keep it special. And, unlike the filibuster, many of these aspects actually emanate from the Constitution. To wit:

  • Senators are still older than House members, with a minimum age of 30 rather than 25.
  • Senators serve six-year terms, insulating them somewhat from shifts in public opinion.
  • The Senate is still much more intimate, with less than a quarter of the House’s population.
  • Senators represent states rather than equally sized districts. John Hoeven, representing 739,000 North Dakotans, has just as much of a vote as Dianne Feinstein, representing 39 million Californians.

These are not necessarily things to crow about, of course. But there are still plenty of things that distinguish the Senate from the House and keep it operating and representing the nation in very distinct ways.

We should also be clear that this only removes one use of the filibuster, one which has been utilized only very rarely in history. To be sure, the lingering threat of a filibuster has shaped how presidents evaluated their own picks for the Supreme Court and how the majority and minority parties strategized, but this is still only a very narrow aspect of the Senate’s job responsibilities.

Furthermore, as Jonathan Bernstein notes, the filibuster on Supreme Court nominations has been functionally dead since 2013, when Democrats removed it for other judicial appointments. The majority was clearly prepared to kill it the moment the minority threatened to undermine its court pick. And the first time it became inconvenient, it fell.

Now, we should acknowledge that the filibuster in general is on thin ice. Despite what much media coverage would suggest, the filibuster is not part of the Senate’s original charter. As Greg Koger notes, the filibuster in the Senate is really more of a 20th-century phenomenon. (Filibusters were more common in the House in the 19th century.) It’s a vestige of an era that was far more embracing of bipartisanship. In a strongly partisan era like today, there is little reason for the majority to tolerate rules that empower the minority if it doesn’t have to. And it only takes a simple majority to change the rules.

So perhaps the filibuster will be dead in its entirety within a few years. Would this be such a terrible thing? It has given the minority party an ability to undermine the majority and prevent legislative action on a great many issues (especially, though not exclusively, civil rights). It’s no wonder that the filibuster’s most ardent defenders tend to be the people who just lost the previous election — it’s anti-majoritarian.

The Senate is now a slightly more majoritarian chamber than it was a week ago. It’s still substantially different from the House, but it has moved in the direction of being more representative of the people it serves. The filibuster is certainly a distinct characteristic of the Senate, but it does not merit our nostalgia.