As one of the more hysterical of the filibuster reform proponents, I’ve been itching to talk about yesterday’s historic change to the Senate rules. For those of you who have been in a coma, the filibuster was changed so that it now only applies to Supreme Court nominations and legislation. But even that is only temporary. The next time there is a filibuster of consequence on these matters, it too will die. But we aren’t likely to see anything for a while because there won’t be a Supreme Court vacancy for a while, nor will there be any important legislation as long as we have divided government. So the filibuster change is about as big as it could possibly be.
What may surprise you is that I think this change is sad. Harry Reid was correct to do it, but what led up to this is just terrible. The filibuster was a good idea and as long as it was used sparingly, it was fine. The standard narrative about it is that the filibuster went on tilt as soon as the two parties became strictly ideological. It used to be the the most liberal Republican was notably more liberal than the most conservative Democrat. That’s no longer true. But it also isn’t true that this is the reason that the filibuster had to be destroyed.
As I wrote about all the way back in January, Republicans Caused All Filibuster Abuse. For good and for bad, the Democrats did and do abide by norms. Over the years, they’ve kept filibuster use at whatever level the Republicans had left it at. It was the Republicans and the Republicans alone who constantly increased the use of the filibuster. The Republicans long ago became a revolutionary party, and as such they have no interest in norms because they don’t think the system itself is legitimate.
So I’m very sad that things have gotten to this place. And let’s be clear: this is a good thing for the Republicans. The Senate is already a highly undemocratic institution. It favors low-density areas and that means that it favors bigotry and intolerance, and that means it favors the Republicans. As it is, they stand a decent chance of controlling the Senate as of 2015. But here’s the thing. Despite their cries and whimpers, the Republicans are thrilled with the end of the filibuster. Their most recent behavior regarding the DC Appeals Court nominations really left the Democrats with no choice. I suspect that they are licking their chops, imagining how they can destroy democracy for decades if only they can get another George W Bush elected.
My biggest concern is that Obama will not use this opportunity. Now is the time to focus on filling judicial vacancies. There are a lot of them and this administration has not been very good at nominating. In the past, that may have been because they figured that the Republicans would just block them anyway. But I think it is more that Obama is just focused elsewhere. And now we can add to that the usual Obama as schoolboy with his bizarre notions of fairness. Well, as it is, the courts are skewed to the right and there are major limits to reproductive rights in Texas because of it. This is a very big issue and Obama needs to pay attention.
I know how the Republicans operate. If they do get the presidency in 2016 (and that is quite possible), they will likely see it as their last opportunity in a while. They will funnel conservative judges onto the federal courts to block any and every liberal legislative endeavor for the next generation. Changing the filibuster gives the Democrats more power now but it also gives the Republicans more power later. And the best way to limit that later power is for the Democrats to maximize the power now.
Regardless of all this strategy, killing the filibuster was the right thing to do. It was the right thing to do in February 2009. Regardless of everything else, the Republicans were going to kill the filibuster the moment it was to their advantage. I still don’t understand what Carl Levin thinks he gets from keeping the filibuster. Can he possibly be naive enough to think that the Republicans would not use the nuclear option when they effectively did so already in 2005? I think the best assumption is that our elected officials just aren’t that good at thinking.
Going forward, I’m cautiously optimistic. But regardless of what bad comes of this, we all have to remember that it was coming no matter what. We need to use this opportunity the best we can to put as much sense in the courts and executive institutions as we can. Now.
Update (22 November 2013 4:17 pm)
I saw the following headline over at Political Animal, With the Filibuster Gone, Time for a Confirmation-palooza! I thought, “Wow! Ed Kilgore is talking as radical as I am!” But it wasn’t so. It seems that Kilgore’s father is in the hospital (on the mend, it looks like) and so he has been getting some help. The article was written by Ryan Cooper. He’s hardly a radical himself, but it isn’t quite the same. Regardless, I agree with him completely! Check out the article.