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Democrats in the Senate have used the power of the filibuster to block from office the 10 most ideologically extreme of President Bush’s nominees for federal judgeships, while approving a vast majority of his nominees. In response, some Republicans have threatened to change the filibuster rules in the name of “majority rule,” and Democrats have countered by saying they will grind the chamber’s business to a halt if the GOP eliminates the filibuster on judicial nominations.
Some Democrats have argued that Republican appeals to majority rule are hypocritical: If Republicans really subscribed to majority rule principles, the argument goes, they would support a constitutional amendment to abolish the Senate itself.
Actually, we should take the question of abolishing the Senate more seriously — not because it proves Republican hypocrisy, but because it helps us to understand the value of the filibuster. It turns out that the reason Americans would likely oppose abolishing the Senate — because it allows an intense minority to have its opinion taken into account — applies equally to the filibuster.
First, a bit of background. As most Roll Call readers know, under the Senate’s “cloture” rule, it takes 60 affirmative votes out of 100 Senators voting to pass most pieces of legislation, including approval of presidential nominees for federal judgeships.
Although current Senate rules would require a two-thirds vote to change the cloture rule, Senate Republicans may soon invoke the “nuclear option” — that is, using a simple 51-vote majority to eliminate the ability to filibuster judicial nominees.
The proposed change would alter the fundamental nature of the Senate. Right now, the Senate is a more collegial institution than the House of Representatives. The rules allow greater time for debate, and each Senator’s views must be taken into account to get most legislation passed.
The Republicans’ primary defense of the nuclear option is that the filibuster thwarts majority rule: Why should 41 Senators have the power to block the wishes of 59? That would be a sensible argument to apply if the Senate were itself a majority institution. But it is not.
Instead, every state gets two Senators, regardless of population. So California and Wyoming each get two Senators, even though the population of California is 70 times larger than the population of Wyoming.
Indeed, many opponents of the nuclear option have noted that the 44 Democratic Senators, plus Independent Sen. Jim Jeffords (Vt.), represent more people in the Senate than the Senate’s 55 Republican members. So if we are really concerned with representing a majority of Americans, a Democratic filibuster could be viewed as furthering majority rule.
Some of these opponents have asked rhetorically why Republicans don’t support eliminating the Senate altogether. Let’s put aside the practical difficulties with abolishing the Senate through constitutional amendment — the small states that get disproportionate representation in the Senate would hardly agree to such a change. Consider the question only as one of policy. Why not eliminate the Senate?
The Senate and the Electoral College are the only major governmental bodies in the United States that fail to comply with the “one person, one vote” principle set forth by the Supreme Court in cases such as 1964’s Reynolds v. Sims. Every state legislature must be composed of representatives elected from districts of substantially equal populations. That rule applies even to state upper houses, such as the California state Senate. The same one-person, one-vote principle applies to local school boards, transportation districts and even to elections for executives such as the president or governor. In all of them, everyone’s vote is weighted equally.
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.