The unequal nature of the Senate doesn’t violate the Constitution because its uneven makeup is enshrined in the Constitution itself. So why not change it? Most people likely would want to keep the Senate in its current form because it serves a valuable check on the rest of government.
The Senate’s structure arose as part of a compromise to help smaller states facing the potential tyranny of large states. Today, the nature of the Senate allows for a small, intense minority to hold things up in the name of political compromise. A Senator from the state of Montana can hold up a large transportation bill out of concern for a provision that affects Montanans, even though Montana’s population is relatively small.
Thus, the very usefulness of the Senate is that it is a non-majority institution. If we like the current structure of the Senate for this reason, we should also like the filibuster. The filibuster allows an intense minority to block the will of the majority.
Of course, too much blocking has political costs, which is why Democrats have approved the vast majority of Bush’s judicial nominees. And it will be politically hard for Democrats to filibuster a Supreme Court nominee the next time a vacancy arises, unless that nominee is truly outside the mainstream of judicial thinking.
But the broader point is that there is a political solution to the filibuster problem. With Republicans keeping the political pressure on, Democrats will have to choose their battles wisely, blocking only the most extreme of nominees. The stronger the Republicans are in the Senate, the fewer nominees that will be blocked. Today, the vast majority of judicial nominees are getting confirmed by the Senate, and the reason is not that Democrats love those nominees.
The point about Republican hypocrisy on majority rule has some elements of truth to it. But Republicans have no monopoly on hypocrisy. When Democrats controlled things, they argued against Republican filibusters (and some even advocated the nuclear option) as Republicans touted the benefits of filibusters. Republicans will no doubt do so again the next time they are in the minority in the Senate with a Democratic president. And at that point, we can hope that the Democrats don’t threaten to “go nuclear.” It would be a shame if either party ended the important role that the Senate has played in American politics.
Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles.
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